In Senior v Rock UK Adventure Centres and others  EWHC 1447 (QB), the High Court has ordered a defendant employer to disclose details of its employers' liability insurance policy. At first sight this decision seems surprising, as it goes against the long-standing principle that a non-party to an insurance contract has no right (absent an insolvency situation) to know the coverage afforded by the insurance, a principle that has been reaffirmed in a number of recent court decisions.
Recent case law
The leading judgment remains West London Pipeline and Storage Ltd and another v Total UK Ltd and others  EWHC 1296 (Comm), where the court found it had no power to order disclosure of a defendant insurance policy to a claimant under the Civil Procedure Rule 18 (request for further information) because the relevant insurance was not a subject matter of the dispute between the parties. More recently in XYZ v Various  EWHC 4056, the court refused to join an insurer as a defendant to litigation proceedings simply to establish the insurance position (see our e-alert here).
In a previous decision in XYZ v Various  EWHC 3643, the court had rejected an application for disclosure of the insurance under CPR 18. However, it had relied on its case management powers in CPR 3.1 instead to request the defendant to provide a witness statement setting out whether it had sufficient insurance cover to fund its participation in the litigation.
Most recently the issue had been explored, albeit indirectly, in the case of Dowling v Griffin  EWCA Civ 1545 where the claimants sued their solicitors for negligence in failing to ensure the defendant had insurance cover in place. The claimants had indeed succeeded in their claim against the defendant architects only to find that the architects, by then insolvent, had no funds to pay and their insurers were entitled to avoid for failure to notify the claim. The Court of Appeal was clear that the solicitors had not been negligent because they could not have obtained disclosure of the insurance under CPR 18. As regards an application under CPR 3.1, this did not assist as the decision of XYZ v Various  had not been made at the relevant time and in any event the architects' insurance was not necessarily relevant to the case management considerations.
The very short judgment in Senior v Rock refers to the older case of Harcourt v Griffin and others  EWHC 1500, where the Claimant's application under CPR 18 for disclosure of the defendant's insurance details had been successful. Harcourt v Griffin was considered, and mainly rejected, in all the more recent cases mentioned above.
However, the decision to rely on Harcourt v Griffin in Senior v Rock can be explained by the striking similarities between the two cases: both relate to claims for personal injury where liability was not disputed and the issue was whether the damages award should take the form of a periodical payment or a lump sum award. The answer partly depended on the defendants' insurance cover, which has to be sufficient to satisfy the damages award either as lump sum or in the form of periodic payments.
In Senior v Rock, the court noted that the claimant had real concern about the level of cover because the schedule of loss was in excess of £5 million, the minimum level of cover required by law, but which can include liability for costs. One can see how, in these circumstances, disclosure of the level of insurance cover could assist the court in reaching its decision on damages.
Whilst it may seem out of step with the most recent case law, the decision can be explained by its particular circumstances, which make it similar to the earlier case of Harcourt v Griffin. As we predicted at the time, the latter did not open the floodgate to applications for disclosure of insurance details because it could be explained on its specific facts. The same can be said for Senior v Rock.
It is also important to note that in Senior v Rock the insurers were not represented and Counsel for the defendant stated his clients' position was one of neutrality: they neither supported nor opposed the application. The short judgment makes no reference to the more recent cases mentioned above that rejected Harcourt v Griffin. Had the Court been referred to all the case law on the point, it might have reached a different conclusion.
Nevertheless, Senior v Rock confirms that different rules seem to be developing for PI claims focusing on quantum. This, together with the earlier XYZ v Various decision, where a witness statement had to be produced to provide information on some aspects of the insurance cover, at least dents the general principle operating against the disclosure of an insurance policy in English proceedings.