CPR Part 18.1 provides for the court to make an order requiring a party to clarify any matter which is disputed in legal proceedings, alternatively to give additional information in relation to such a matter.
In the case last year of "Harcourt v FEF Griffin" [2007] EWHC 1500 QB, liability in respect of a personal injury action was settled, with the claimant recovering 75% of the total claim. The amounts involved were considerable and there was some doubt as to the defendants' means. Consequently, the claimant made an application under CPR Part 18 for further information on the defendants' insurance cover on the grounds that the claimant did not want to waste time and costs arguing on quantum if they could not make the relevant recovery.
In that case, Irwin J held that the court's jurisdiction in such cases should be exercised to ensure that the parties had all the information they needed to deal efficiently and justly with the matters in dispute. The fact that the nature and content of the defendants' insurance cover was not of itself a matter in dispute between the parties was not an obstacle to the exercise of the court's discretion under Part 18. Rather, the court should interpret the relevant wording "reasonably liberally". The purpose of the Civil Procedure Rules was to avoid wasting time and costs and ensuring proportionate and economical litigation. It was sufficient therefore that the information requested would allow the parties to discover whether there was a live disagreement between them on a particular point.
However, Irwin J added that disclosure of this kind should only be ordered when a party "can demonstrate there is some real basis for concern that a realistic award in the case may not be satisfied". Any judge should therefore exercise his jurisdiction to order disclosure of such information with caution.
Another first instance decision this year, however, seems to disagree with this somewhat liberal interpretation of CPR Part 18. The relevant case is a decision of Steel J in "West London Pipeline and Storage Ltd and another v Total UK Ltd & Others" [2008] EWHC 1296. The original proceedings involved a claim by West London against Total for losses arising out of an explosion at the Buncefield Oil Terminal in 2005. Potential liability amounted to approximately £700 million. Total had succeeded in joining TAV Engineering Ltd (TAV) as a third party, seeking a contribution under the Civil Liability (Contribution) Act 1978 towards any losses for which it might be found liable in the main proceedings. TAV's involvement and potential liability was based on their role as designer / manufacturer / supplier of a switch which Total allegedly failed to operate, thereby causing fuel to overflow at the Oil Terminal and resulting in the explosion.
Total sought disclosure of information regarding TAV's insurance policy documentation under CPR Part 18. When TAV refused to disclose its policy, Total made a formal application to the court on the grounds that this information was relevant to the issues in dispute and / or necessary for effective case management. Given the size of the potential claim, even a small percentage contribution would amount to a sum which, according to Total, TAV would not be able to pay without insurance cover.
TAV argued that the court had no jurisdiction to order disclosure of their insurance policy since insurance policies were not disclosable under CPR Part 31 as part of standard disclosure or otherwise. They did not affect a party's case, were not relevant to the issues and did not constitute documents which might lead to a train of inquiry enabling a party to advance its own case or damage its opponent's.
Steel J. agreed with TAV. He conceded that apportionment of liability under the 1978 Act was not based solely on causative responsibility and that a party's acts or omissions could be taken into account even if not causative. However, his view was this would happen in very exceptional circumstances only and there would have to be a close link between these non-causative factors and the causative acts. The existence or scope of insurance cover could not be material to the issue of apportionment as there was no link between cover and the causative conduct.
Furthermore, having regard to the wording of CPR Part 18.1, the judge did not see how this was a matter "in dispute in the proceedings". Whilst he acknowledged the trend towards more open litigation and the modern "cards on table" approach, he was not persuaded that he should be "rewriting" CPR Part 18. Nor was there a power to order production of the requested information otherwise than under the CPR provisions.
Two seemingly conflicting decisions, then. Insurers and defendants will know no doubt wait to see if another case on topic reaches the Court of Appeal sometime soon so that they are better able to predict how successful they will be if they refuse such requests for disclosure in the future.
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