West London Pipeline and Storage Ltd and Anor v Total UK Ltd and Ors [2008] EWHC 1296 (Comm)

Despite the trend towards open litigation, Steel J found a defendant’s insurance position did not support or adversely affect any party’s case and therefore could not order its disclosure.

The claim arose out of the Buncefield oil storage depot explosion. An application was made by Total for information and disclosure in respect of a third party’s (TAV) insurance position. TAV were the designers, manufacturers or suppliers of the switch which, Total alleged, caused the explosion. Total advanced their application on the basis that:

(i) the material was relevant to the issues and/or,

(ii) the material was necessary from the perspective of efficient case management.

Steel J found that TAV’s insurance position was not disclosable under CPR Part 31 as it neither supported or adversely affect any party’s case, was not relevant to the issues, nor constituted documents which may lead to a train of enquiry enabling a party to advance his case or damage his opponents. Further, CPR 18 did not apply because disclosure of TAV’s insurance position would not clarify any matter which was in dispute nor impact on a parties’ ability to prepare its case. Accordingly, Steel J found that the court had no jurisdiction to require disclosure of TAV’s insurance position.

As to the efficient case management point, whilst Steel J acknowledged that in modern litigation the trend is towards a “cards on the table” approach, to allow the disclosure of TAV’s insurance position would require a change in law and practice.

Steel J acknowledged that his conclusion was contrary to another first instance case, Harcourt v Griffin and Ors [2007]. Insurers had been exposed to speculative “deep pocket” litigation as a result of the Harcourt decision and Insurers will take comfort from this contrary decision in Total.