The recent case of XYZ v Various [2013] EWHC 3643 considered under what circumstances the court can order a party to provide the details of their insurance to determine whether they have the financial provisions in place to support the underlying litigation.

Background

The ongoing underlying claim involved a group litigation order against various companies running private hospitals that supplied defective breast implants manufactured by the French company, PIP.  Transform Medical Group (CS) Ltd (Transform) is the effective lead defendant to the proceedings in which a trial of preliminary issues has been ordered and an associated case management timetable set, with the intent of the court determining key issues that will essentially (it is hoped) determine the various claims of the parties to the proceedings.

The present hearing concerned an application by the claimants for a court order that Transform “provide information to the claimants as to the nature and extent of its liability insurance cover in respect of its potential liability in these proceedings...pursuant to CPR part 18 and/or part 3.1(2)(m)”. 

The claimants were concerned about Transform’s ability to continue to participate in the litigation, and the conclusion of any appeal, if insurance cover for that participation (and satisfaction of any judgment) was not confirmed.

The court proceeded on the basis that it accepted that Transform might not be able to fund the litigation to the conclusion of the trial; the court agreed that if so, this would have a substantial impact on future proceedings were it later to transpire that Transform was financially incapable.  The claimants submitted that there were two bases on which the court should order Transform to reveal its insurance details:

  • CPR 18, where the court may order a party to clarify a matter in dispute or provide additional information in relation to the matter; and
  • CPR3.1, where the court may make an order for the purpose of managing the case or furthering the overriding objective.

Decision

The court agreed that CPR 18 did not provide the court with jurisdiction to order Transform to disclose the insurance details: information about Transform’s insurance position did not relate to a matter in dispute in the proceedings.  CPR 18, it was held, serves only to enable a party to acquire the information necessary and proportionate to prepare their case or the case they have to answer, i.e. the legal/factual issues at stake, as identified in the supplementing practice direction (West London Pipeline and Storage v Total (UK) Ltd [2008] EWHC 1296 and Bekhor v Bilton [1981] QB 923). 

However, the court concluded that it did have power under CPR 3.1. to order Transform to provide a witness statement as to their insurance position and whether this was sufficient to fund their participation in the trial and conclusion of any appeal. That provision serves to uphold the overriding objective by assisting the court with the performance of effective and proportionate case management and Transform’s funding arrangements relating to the litigation were considered to be a matter that affected case management.

Comment

Previous cases in this area have focussed on whether insurance details should be disclosed or provided under CPR 18. The decision here is consistent with the authorities that have rejected that jurisdiction.

The focus on case management powers as a tool is more nuanced. A driver here was that the financial strength of the defendant was a prominent issue in whether the court timetable and general case management of the group litigation accordingly for all participating parties could be maintained. The making of the order, and on the basis stated, in this case is a signal that if there are good case management reasons in any given matter for insurance details to be provided, then the courts may well be prepared to grant orders relating to such information provision.

Further reading: XYZ v Various [2013] EWHC 3643