Can a Defendant be required to disclose information about its insurance position? A recent decision with a sting in the tail
Any practitioner who has had to grapple with the issue posed in the title to this article will have come to realise that there are two conflicting decisions on the point.
In Harcourt v Griffin (2007) EWHC 1500 (QB), liability was admitted in a multi-million pound personal injury claim. The claimants expressed doubts about the wealth of the Defendants and made a request under CPR Part 18 to elicit the extent of any insurance cover. Irwin J concluded that the court had power pursuant to CPR 18 to order a defendant to provide this information.
By contrast, in West London Pipeline v Total (UK) (2008) EWHC 1296, a £700m claim for property damage arising out of the Buncefield explosion, David Steel J took a very different view. He concluded that neither CPR 31 nor 18 gave the court power to disclose a copy of, or information about, a Defendant’s insurance policy. He cited a number of earlier Court of Appeal and High Court decisions which had not been placed before the Court in Harcourt and suggested that Irwin J’s decision might well have been different if they had been.
In X, Y and Z v Various (2013) EWHC 3643 the Court was concerned with a huge group action (in excess of one thousands Claimants) bringing claims for personal injury caused by defective breast implants, an issue which received wide-spread publicity in the news. The claimants had serious concerns about the financial position of one of the Defendants and submitted that unless it had adequate insurance i) successful claims against it would not be met and costs (all incurred under CFAs) would not be paid and/or ii) the relevant defendant would collapse before or at the time of trial, with obvious consequences for the timetable and the resolution of the other claims.
Thirwall J (who is case-managing the breast-implant litigation) agreed with David Steel’s analysis of the power to order disclosure under CPR 18. She concluded that “the insurance position of the defendant is not a matter in dispute in these proceedings. Information about it does not relate to any matter in dispute”.
However, the Claimants had also sought disclosure of the same information under CPR 3.1(2)(m), which provides:
“except where these rules provide otherwise, the court may…take any…step or make any…order for the purpose of managing the case and furthering the overriding objective”.
The Defendant argued that this rule could not possibly be used to achieve, through the back door, that which was not possible under CPR 18 or 31. Parts 18 and 31 of the CPR were, the Defendant submitted, a “comprehensive and complete code which regulates the obtaining and use of documents and other information in civil litigation”.
Thirwall J disagreed. She concluded that whilst she should not order any information about whether the Defendant had sufficient funds to i) meet any order for damages and ii) meet any order for costs, she would order it to disclose whether it had sufficient funds to cover its participation in the litigation to the end of trial. This was a matter going directly to case management of the group litigation since if she were to “revise the directions now and it later transpired that (the Defendant) had been adequately insured all along, the litigation would plainly have consumed (indeed wasted) more than its appropriate share of the court’s resources for no good reason”.
One cannot help but feel some sympathy for the Defendant’s position. Some 6 pages (of 7) of Thirwall J’s judgment were devoted to the question of disclosure under CPR Part 18, in respect of which the application was roundly dismissed. To have allowed the application under an extremely broad ‘catch-all’ provision dealing with case-management plainly left a bitter taste in the mouth.
Nonetheless, the significance of the decision should not be overstated. The order was expressly limited only to information relevant to the Defendant’s financial position to the end of the trial. This was perhaps uniquely relevant in the context of huge group litigation with a total value of £13m. In smaller, single party claims it seems unlikely that there will be any equivalent necessity for the disclosure of such information. Information relating to the Defendant’s ability to meet a judgment or pay costs after trial remains effectively ‘out of bounds’.