Limited order to provide disclosure of professional indemnity insurance details in the PIP breast implant litigation

In the PIP breast implant litigation, the Court required evidence that the Defendant had sufficient insurance to run the matter to trial and appeal.

Summary

It has been previously understood that a Court does not have the power to order a Defendant to disclose the details of its insurance arrangements. Our article on the West London Pipeline Storage v Total UK decision can be found here: Mr Justice David Steel refused an application in the Buncefield litigation for disclosure of the (BTE) insurance cover of an opponent. In contrast, the Court in Barr v Biffa Waste Services did order the disclosure of the claimant`s after the event (ATE) insurance policy – our elexica article can be found here.

However, in the PIP breast implant litigation (XYZ v Various) the Court got around any debate on these cases by exercising its case management powers to require limited disclosure of the insurance position.

XYZ v Various – The PIP Breast Implant Litigation [2013] EWHC 3643 (QB)

In the group litigation claim against various companies for supplying defective breast implants manufactured by the French company, PIP, an application was made for one of the chosen lead Defendants to confirm that it had sufficient insurance:

  • to fund its participation in the litigation to the end of trial
  • to meet any order for damages
  • to meet any order for costs.

This was against the background of another Defendant going into liquidation in the early part of the litigation.

The primary application was under CPR 18.1 seeking further information of the Claim. That application was given relatively short shrift, following the decision in Total v West London Pipeline Storage. The Practice Direction which supplements Part 18 indicates that "a request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to answer". Information about the Defendant’s insurance position did not relate to any matter in dispute in the proceedings.

However, the Court was more sympathetic to the application 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 Court noted that the overriding objective was recently amended so as to require the Court to deal with cases justly and at proportionate cost.

Dealing with a case justly includes (CPR 1.1 (2) (e)) allotting to it an appropriate share of the court's resources. Mrs Justice Thirlwall DBE felt that whether or not the Defendant could fund this litigation to trial (and any appeal) did affect case management. If the directions were revised (to allow the possibility of new sample cases but maintain the trial date) but then it transpired that the Defendant had been adequately insured all along, there would have been a waste of court time and resources for no good reason. If the Defendant was ultimately unable to fund itself through to trial (and possibly an appeal) this would result in a substantial waste of costs, and delay in the overall timetable while a replacement Defendant (probably with a different legal team) was found and the matter pursued through to trial. Given that this was a group litigation which was being carefully case managed so as to reach a proportionate result, the Court determined that it did have discretion – and would exercise it – to require the Defendant to provide a witness statement (or statements) confirming that there was sufficient insurance to run the matter to trial and appeal. It would not, however, go as far as requiring confirmation that any adverse order as to costs could be met.

Commentary

This is a fact sensitive decision which is unlikely to have wide application. However it is helpful in (a) reiterating that the insurance position is generally irrelevant and the policy itself will therefore not be discloseable and (b) setting out the very limited information which a court would require disclosure of insurance arrangements to support its case management powers.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.