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1. This is an appeal brought by the above named Appellants against the judgment of the High Court, Smyth J., delivered on the 15th day of May 1998 and the order of the High Court made in pursuance thereof dismissing the application made on behalf of the Plaintiffs for an order extending the time for acceptance of a lodgment made in these proceedings by the fourth named Respondent in the title hereof (hereinafter referred to as Lloyds).

2. The background to this case is set forth in detail in the judgment of Mrs. Justice Denham delivered on the 27th day of June 1995 and as stated by her:-

3. This matter came before the Court on the 19th November 1996 and it was ordered that the Plaintiffs (Appellants herein) do issue and serve on the Defendants (Respondents herein) on or before Friday, 22nd day of November, 1996 a notice of motion for leave to adduce further and/or fresh evidence herein which motion was to be returnable for the 25th November 1996.

4. On the 25th November 1996, the High Court found that the parties hereto are not estopped from adducing further and/or new evidence in relation to the assessment of damages to be made herein and ordered that:-

5. Further orders were made by the High Court (Smyth J.) on the 10th day and the 11th day of December 1996.

6. In pursuance of the order made by Smyth J. on the 25th November 1996 the Appellants herein caused to be issued a motion dated the 21st February 1997 seeking leave to adduce further and fresh evidence as per the order of the 25th November 1996; this motion was heard on the 12th and 13th days of March 1997 and on that date the learned trial judge made an order which cited to his ruling made on the 11th day of March 1997 that the insured plaintiffs may pursue a claim a claim on contract and/or negligence and that the uninsured Plaintiffs may pursue a claim in negligence ordered that

7. The first, second and third named Respondents delivered an amended defence on the 19th November 1996 and the fourth named Respondent delivered an amended defence on the 10th January 1997.

8. I base this summary of the orders and rulings made by the learned trial judge on the documents set forth in the Book of Pleadings submitted on behalf of the Appellants.

9. In addition, the Court has been informed that the case has been in progress for 88 days, 55 of which have been devoted to the cross examination of Mr. Bunyon, which said cross examination is not yet complete.

10. As appears from the order dated the 13th March 1997 the learned trial judge differentiated between what he described as “the insured Plaintiffs” and “the uninsured Plaintiffs” .

11. As appears from the Policies handed in to the Court, during the course of the hearing of the appeal, the “insured plaintiffs” are Superwood Ltd., Superwood Exports Ltd., Superchip Ltd, and Superwood Holdings Plc.

12. Superwood International Ltd. and Superwood (U.K.) Limited are “uninsured plaintiffs” .

13. While Superwood Ltd., Superwood Exports Ltd., Superchip Ltd. and, Superwood Holdings Plc, are entitled to maintain a claim for damages for both breach of contract and/or negligence, Superwood (U.K.) Ltd. and Superwood International Ltd. are limited to a claim for damages for negligence.

14. The contract of insurance entered into by Lloyds is a separate contract to that entered into by the first, second and third named Respondents and appears

15. As between the four Respondents liability on foot of the policies would appear to be

16. I have referred to the aforesaid orders of the High Court made by the learned trial judge for the purpose of illustrating his involvement in and familiarity with all the issues in this complicated case which, at the time of the making of the order, the subject matter of the appeal herein, was, and still is, at hearing before him.

17. During the course of the hearing of the original action by the Appellants herein and the appeal from the judgment of the High Court, the Respondents herein were not separately represented but, as appears from the judgment of the

18. As stated by the learned trial judge:-

19. However, it would appear that the granting of such separate representation has resulted in a settlement of the Appellant Companies claims in these proceedings, in so far as they relate to Lloyds, the fourth named Respondents herein.

20. While the Court has not been informed of the terms of the settlement, it would appear that it was a term of same that the money lodged in Court by Lloyds pursuant to the order of the High Court made on the 12th day of November, 1996 be paid out to the Appellants.

21. By Notice of Motion dated the 28th day of April 1998 addressed to and served on the Solicitors for the first, second and third-named and the Solicitors for Lloyds the Appellants sought:-

22. The said application was expressed to be grounded on

23. The application was not grounded on any affidavit and was heard by the learned trial judge on the 5th, 8th and 12th days of May 1998.

24. The application was supported by Counsel for Lloyds and opposed by Counsel for the first, second and third-named Respondents.

25. By order dated the 15th day of May, 1998 the Appellants application was refused for the reasons set forth by him in the course of his judgment on that date.

26. The Appellants have appealed to this Court against the said Order. As this Order was an order made by the learned trial judge in the course of an action at hearing before him - an obviously complicated action involving claims for damages on behalf of six Plaintiff Companies against four Defendant Insurers and at this stage at hearing far in excess of 80 days - the first question for consideration by this Court is whether this Court should at this stage entertain an appeal against the refusal by the learned trial judge to grant the application made on behalf of the Appellants.

27. This Court has on many occasions indicated its disapproval of appeals to this Court against orders made by a trial judge during the course of hearing an action.

28. The strongest indication of such disapproval is to be found in Condon . v. Minister for Labour [1981] IR page 62 and in particular in the judgment of Kenny J. with which O’Higgins C.J. and Parke J. agreed.

29. At page 74 of the Report, Kenny J. stated:-

30. It is clear from a consideration of the judgment in that case, which concerned the validity having regard to the terms of the Constitution of the “Regulation of Banks (Remuneration and Conditions of Employment) (Temporary Provisions) Act, 1975” , that the Court considered it to be “grossly irregular” to bring an appeal to the Supreme Court against a ruling of the High Court made in the course of proceedings before it and expressed strong disapproval of the course adopted in that case.

31. The judgment went so far as to state that the Court could dispose of the appeal on that ground alone but did not do so because of the importance of the issues involved in the case.

32. I am satisfied that this case provides ample authority for the proposition that appeals should not be made to this Court against orders or rulings made by a trial judge during the course of an action being tried by him or her.

33. It is, however, submitted on behalf of the Appellants herein that the ruling made by the learned trial judge in this case was not made during the course of the proceedings being heard by him because, by virtue of the agreement reached between the Appellants and Lloyds all proceedings against

34. Lloyds were at an end and all that was required to implement the settlement, which brought about this happy conclusion, was that the Appellants be granted an extension of time for the purpose of accepting the lodgment made by them in Court.

35. The learned trial judge, however, considered that there were still outstanding issues in the case which involved the first, second and third-named Defendants, including the costs of various interlocutory applications and the costs of the proceedings and in effect that the claims and causes of action and damages were inextricably linked or interlocked.

36. At the conclusion of his judgment the learned trial judge stated:-

37. It is clear from the judgment of the learned trial judge that he considered that the provisions of Order 22 Rule 12 of the Rules of the Superior Courts applied to the circumstances of this application. Indeed it had been submitted

38. Order 22 Rule 12 provides that:-

39. It is clear from a consideration of the terms of this rule that it applies, and can apply, only in the circumstances set forth in the said rule, viz.

40. That is not the position in this case.

41. Whilst it is unfortunate that the application made in this case was not grounded on an affidavit disclosing the relevant facts, it is clear from the judgment of the learned trial judge that the Appellants (the Plaintiffs in the action) have settled all aspects of their claim against Lloyds pursuant to an agreement made between them which agreement contained a “confidentiality clause” and what was described as ‘a side agreement’ which dealt with ‘issues arising out of the Civil Liability Act’, but no settlement was reached in respect of the claim against the other defendants. The agreement obviously provided for the payment out to the Appellants of the money lodged in Court by Lloyds as an integral part of the settlement.

42. The provisions of the ‘side agreement’ were made available to counsel for the first, second and third named who objected to the learned trial judge being informed of its contents and who declined to receive the document.

43. It is also clear from the judgment that the learned trial judge accepted that the agreement provided that there should not be any order for costs as between the Appellants herein and Lloyds.

44. The first, second and third named Respondents do not, and indeed could not, challenge the right of Lloyds to settle the claim brought against them by the Appellants herein and to refrain from further participation in these proceedings but object to the payment out to the Appellants of the monies lodged in Court by Lloyds in satisfaction of the portion of the Appellants’ claim against them.

45. These Respondents relied on the provisions of Order 22 Rule 12 of the Rules of the Superior Courts to support their submission that the monies lodged in Court by Lloyds could not be paid out to the Appellants unless and until the costs of the action are dealt with by the trial judge.

46. The application does not fall under that rule or the precise terms of any other provision of Order 22 aforesaid. However, the reality of the matter is that the lodgment was made by Lloyds who have compromised the claim made by the Plaintiffs on terms which include the payment out to the Plaintiffs of the monies so lodged. Whether the compromise involves the Plaintiffs retaining all of those monies or those monies plus additional funds or refunding some part thereof to Lloyds I do not know. But what can be said with confidence is that the Plaintiffs and Lloyds are the only parties to the proceedings who have any possible proprietorial interest in the monies lodged in Court. The other Defendants have not got, or identified any circumstances in which they might obtain, any interest whatever in those monies. In those circumstances and in the absence of any conflicting interest I believe that the monies lodged in Court should be dealt with by the learned High Court Judge in such manner as the Plaintiffs and Lloyds have directed.

47. I am further satisfied that the proceedings in this case so far as they relate to the claim by the Appellants against Lloyds have been finally determined by virtue of the agreement between them and without derogating in any way from the proposition enunciated in the earlier portion of this judgment viz. that appeals should not be made to this Court against orders or rulings made by a trial judge during the course of an action being tried by him or her, I am

48. I am further satisfied that there is no rule of law, nor do the interests of justice require, that there should be any impediment to the implementation of a desired settlement of even portion of these long protracted proceedings.

49. Consequently I would allow the appeal.