The High Court has had its first combined hearing over several civil cases brought about following the collapse of CBL Corporation.
The NZX-listed insurer had a market capitalisation of $747 million when it fell over in February 2018, attracting lawsuits from representatives for creditors, regulators and shareholders alike.
More than 10 lawyers – including four QCs - piled into courtroom 11 at the High Court at Auckland today for the first airing of the matter, which was largely administrative and related to timetabling. Another 10 or so watched in the public gallery.
The insurer's collapse has brought four sets of civil suits before the High Court: the case brought by the Financial Markets Authority; the liquidators for CBL Insurance; and the final two sets of proceedings are shareholder class actions. A criminal prosecution is also underway in the Auckland District Court.
Justice Graham Lang said he would proceed with case management today but indicated that his son works at Anthony Harper – which is representing the liquidator Kare Johnstone – and he had had some peripheral involvement in the case.
The judge said because of this, the liquidator's proceedings, which are also against CBL's actuary PwC, will be dealt with by Justice Geoffrey Venning. Mark O'Brien QC, representing the accounting firm, indicated PwC might try to strike out early the proceeding against it.
It is not yet clear to what extent the cases will be merged, as Justice Lang indicated, "it is already evident the proceedings are going down different paths." A key difference is that the shareholder class action alleges wrongdoing over a longer span of time than the FMA's suit, the court heard.
It was suggested that the regulator have the "first bite" at discovery with the others to follow.
The judge implored the parties to share pleadings, despite the liquidator's lawyer Murray Tingey suggesting that it has more information, much of which is confidential.
"There is an expectation of the sharing of pleadings, if there is anyone who has a reason not to they should advise in writing as to why, and if parties can't reach agreement they should come to me or Justice Venning and seek an order," the judge said.
Philip Skelton QC, who is representing a shareholder action brought by Basil Ian Livingstone and funded by IMF Bentham, said security of costs needed to be dealt with. He thought it shouldn't be contentious given his client was indemnified by the funder.
Both class actions are still waiting for the courts to greenlight them as representative actions, which is expected to take just half a day, although the lawyer representing the LPF Group claim, Mike Colson, said he hoped there might be agreement on that matter. He noted that the defendants' defences against its claim were "woefully overdue."
"That's a constructive start and we will meet again in August," the judge concluded.
Others in court today included Davey Salmon who is representing CBL managing director Peter Harris, John Billington QC for director Alistair Hutchison, Tim Lindsay for CBL's independent directors, and Chris Morris for former chief financial office Carden Mulholland.
Jim Farmer QC is representing the Financial Markets Authority, while CBL Corporation is being represented by Jason Goodall.
Who sues whom
The FMA has two suits in relation to the collapse: the first relates to the initial public offering disclosure and is against CBL Corp, Harris and Hutchison; the second concerns breaches of the Financial Markets Conduct Act and is against all directors as well as the company.
The liquidators' claim is more opaque. Johnstone said back in December the claim was against "directors and other parties." BusinessDesk revealed earlier this year PwC was one of those parties.
The key difference between the two class actions underfoot is that the IMF one is against only CBL and its insurer whereas the other class action, which is backed by CBL's major institutional investors, is against both CBL and its directors.