A High Court judge has ordered FBD Insurance to provide a fuller explanation for its delayed direction to staff to preserve documents relevant to legal proceedings over whether the insurer must pay out for losses resulting from enforced pub closures due to the Covid-19 pandemic.
Michael Cush SC, for two companies operating the Lemon & Duke and The Leopardstown Inn bars, complained the direction only issued on July 2nd last despite material indicating litigation against FBD was contemplated by the insurer from March and the litigation issuing in May.
Mr Cush also told Mr Justice Denis McDonald, during a hearing this week of pre-trial discovery issues, that material recently discovered by FBD included text messages exchanged between some personnel of the company in March and April last in which there was discussion of FBD’s policies in “disparaging terms”. There was some “pessimistic” discussion of the insurer’s prospects of successfully defending litigation, counsel said.
Implications for 1,000 pubs
The judge remarked the fact someone in FBD may have said it had a weak defence “is neither here nor there” as it was for the court to decide that issue at the hearing next month of four test cases with implications for more than 1,000 pubs. Mr Cush also said FBD has discovered an email from then FBD CEO Fiona Muldoon dated March 17th 2020 to Ms Kate Tobin containing certain notes.
Remy Farrell SC, for FBD, said it has made extensive discovery of more than seven million documents within a much shorter timeframe than normal for this type of commercial litigation and strongly disputed it had not taken its discovery obligations seriously.
The applicant pubs had taken an “aggressive” approach to discovery, counsel argued.He opposed Mr Cush’s application that FBD be directed to provide a more detailed explanation concerning why the direction to preserve documents issued in July and why FBD believed the delay was unlikely to have meant the destruction of relevant documents, with the exception of certain documents it had referred to in a schedule.
Mr Cush disputed any “aggressive” approach and said it was inappropriate for his colleague to characterise the pubs’ discovery concerns as “whingeing”.
In his ruling, the judge noted FBD had provided affidavits addressing the applicant pubs concerns that the ‘litigation hold’ direction, a direction to preserve documents, had not issued until July. FBD had given an explanation for that, including that, due to miscommunication within FBD, it was mistakenly thought a litigation hold notice had issued earlier when it had not.The judge said the FBD affidavits were not sufficiently detailed in relation to the matter.
That may be accounted for by the speed with which FBD had had to provide the relevant affidavits and the court was not criticising FBD, he said.
He directed FBD to provide a supplemental affidavit by Monday explaining, inter alia, how it had discovered a litigation hold notice had not issued, the circumstance in which it previously thought a notice had been issued and the basis for its belief the delay had not led to destruction of documents. READ MOREOmbudsman to ‘vigorously oppose’ FBD action to halt inquiry into publican’s complaint