Chubb European Group SE [Formerly Ace European Group Ltd] & Ors v Perrigo Company PLC & Ors (Approved)

Factual and Procedural Background

This opinion arises from a commercial contract dispute involving parties referred to as Plaintiffs and Defendant. The dispute concerns the appropriate terms to be inserted in a court order following a hearing held from 21st November 2023 to 1st December 2023 ("Principal Hearing") and the resulting judgment ("Principal Judgment"). The issues in dispute relate to the aggregation of wrongful acts to particular insurance policies dated 2014, 2015, and 2016, and the proper characterization of claims under those policies. A supplementary hearing was held on 12th April 2024 to determine the terms to be inserted in the final court order in light of the Principal Judgment. The Defendant sought to include terms in the order regarding matters not dealt with at the Principal Hearing or in the Principal Judgment, which the Plaintiffs opposed.

Legal Issues Presented

1. Whether a court has the jurisdiction to insert terms in a court order regarding issues that were not the subject of a hearing or determination by the court, particularly when such terms may prejudice a third party.
2. Whether a court can insert prejudicial terms in the recitals of a court order, as opposed to the operative part, when the issue was not considered at the hearing.
3. How to accurately reflect in the court order the determinations made in the Principal Judgment concerning the aggregation of wrongful acts to specific insurance policies.

Arguments of the Parties

Plaintiffs' Arguments

• The court order should only reflect issues actually determined at the hearing and in the judgment.
• Opposed insertion of terms relating to issues not considered at the hearing, such as the Shareholder Demand Letter and the Single Claim, as these would prejudice the Plaintiffs.
• Argued that the wrongful acts not aggregated back to the 2014 Policy but notified during the 2015 Policy must be allocated to the 2015 Policy.
• Rejected the Defendant's proposed terms that claims arising from certain wrongful acts should aggregate back to policies other than those determined by the court.
• Objected to the insertion of notes or observations in the order that were not determined by the court, particularly where such notes may prejudice the Plaintiffs.

Defendant's Arguments

• Requested insertion of terms in the court order regarding the Shareholder Demand Letter and the Single Claim, which were not considered at the hearing.
• Argued that certain wrongful acts (Tysabri Accounting, Collusive Pricing, Pricing Pressure Misrepresentations) should aggregate back to the 2015 Policy or be treated as a Single Claim under the 2016 Policy.
• Sought declarations that the 2019 Derivative Complaint is a Securities Claim under the 2014, 2015, and 2016 Policies.
• Requested that declaratory reliefs sought by the Plaintiffs in their Statement of Claim be refused.
• Asked for a note to be inserted in the recitals of the order regarding the Omega Arbitration Claim, despite it not being determined at the hearing.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by identifying a significant unresolved legal question: whether it has jurisdiction to insert terms into court orders relating to issues not decided at hearing, especially when such terms prejudice third parties or parties to the litigation. The Court acknowledged conflicting High Court authorities—one line (Matthews/Wilson) supporting such jurisdiction and another (Kuczak/Moloney) denying it on grounds of due process and fairness.

Applying the principle from IBRC v Quinn, the Court emphasized that a court order must be an accurate and definitive record of what was actually determined at the hearing. The Court rejected Perrigo’s requests to insert terms about the Shareholder Demand Letter, Single Claim, and other issues not considered at the Principal Hearing or in the Principal Judgment, as doing so would exceed judicial powers and prejudice Plaintiffs without due process.

The Court distinguished wrongful acts that were aggregated back to specific policies in the Principal Judgment from those that were not, ordering the court order to reflect only what was determined. For example, the Value of Offer Misrepresentation aggregates back to the 2014 Policy, while the Organic Growth and Omega Integration Misrepresentations attach to the 2015 Policy. The Court refused to allocate wrongful acts to policies other than those determined by the Principal Judgment.

Regarding the insertion of notes in the recitals of the order, the Court held that even such notes should not be inserted if they prejudice a party or a non-party, citing Fahy as persuasive authority. The Court concluded that the operative part and recitals of a court order must not include observations or notes about issues not determined at hearing, especially where prejudice may result.

The Court expressed concern about the arbitrary choice of law due to unresolved conflicting High Court views and the absence of appellate guidance, noting the implications for the rule of law and public confidence. Nonetheless, it resolved to follow the line of authority denying jurisdiction to insert prejudicial terms not decided at hearing, to uphold principles of due process and judicial restraint.

Finally, the Court addressed costs, encouraging a practical approach consistent with recent appellate guidance, hoping the parties would agree on costs without further court intervention.

Holding and Implications

The Court refused to insert terms in the court order relating to issues not determined at the hearing or in the judgment, where such terms would prejudice another party.

The Court ordered that the final court order must accurately reflect only those issues actually decided at the Principal Hearing and in the Principal Judgment. Specifically, it confirmed the aggregation of wrongful acts to the relevant insurance policies as determined by the Principal Judgment and rejected requests to allocate claims or wrongful acts to different policies or to treat them as single claims where not determined.

The Court also refused to insert notes or observations in the recitals of the court order concerning issues not decided at hearing, on grounds of potential prejudice and the need for the order to be a definitive and accurate record.

The decision directly affects the parties by limiting the scope of the court order to matters actually determined, thereby protecting the due process rights of parties and third parties potentially prejudiced. No new precedent was established beyond the Court’s choice to follow the line of authority denying jurisdiction to insert prejudicial terms not decided at hearing.