UK: Disclosure Of Insurance Cover: A New Frontier?

Last Updated: 9 January 2009
Article by Andrew Blair and Natalia Lyttleton

The case of Harcourt v Griffin and others (2007) paved the way for claimants to request disclosure of a defendant's insurance arrangements. This was a personal injury action in which the parties had reached agreement on liability, leaving the issue of quantum to be determined. Concerned with the ability of the defendants to satisfy any eventual award, Mr Harcourt made a CPR Part 18 request for further information to establish the extent to which the defendants' insurance policy would cover the damages and costs that might be awarded in final judgment.

The relevant part of CPR 18.1 provides that the court may at any time order a party to clarify any matter which is in dispute in the proceedings. The basis of Mr Harcourt's application was that it would be wasteful and wrong to pursue a contested quantum phase if any damages and costs awarded would not ultimately be recoverable because the defendants' insurance cover was inadequate. The defendants refused to supply the information on the grounds that, first, a non party to an insurance contract has no right to know its terms; secondly, had Parliament intended to legislate otherwise it would have done so; thirdly, permitting such disclosure would provide an unfair advantage to the claimant; fourthly, if such a request were granted, it would become standard practice to make such applications thus leading to wasteful satellite litigation; and, fifthly, whilst the periodical payments regime requires defendants to confirm whether they can meet periodic payments, disclosure of the actual limit of cover is not a requirement.

Irwin J accepted that the nature of the defendants' insurance cover was not in itself a "matter in dispute", but nevertheless ruled that the wording of CPR 18 ought to be interpreted "reasonably liberally" with the result that the court had jurisdiction to grant Mr Harcourt's request. Crucially, he added that:

"Disclosure of this kind should only be ordered where a claimant (or where the situation arises, any other party) can demonstrate that there is some real basis for concern that a realistic award in the case may not be satisfied...There must be some real basis for suggesting that the disclosure is necessary, in order to determine whether further litigation will be useful or simply a waste of time and money."

While Harcourt is undoubtedly important news for insurers, illustrating as it does the readiness of the court in certain circumstances to interpret CPR 18 widely and to give effect to the overall spirit of the CPR, the effect of Irwin J's ruling has been restricted by the recent decision in West London Pipeline v Total (2008). In that case, the original proceedings involved a claim against Total for losses arising out of the Buncefield explosion in 2005. Potential liability amounted to £700m. Total sought contribution from a third party for liability Total faced incurring in the main action. Total made a Part 18 request against the third party for details of its insurance cover; the third party was a non-trading, asset-less company and Total argued that disclosure was therefore necessary to determine whether to continue its claim. It was common ground that the information sought was not subject to disclosure under CPR Part 31.

Contrary to the decision in Harcourt, Steel J ruled that the court had no jurisdiction to require disclosure of the third party's insurance position. In coming to his decision, Steel J considered the potential prejudice to the defendant as against the trend towards more open litigation, but was not sufficiently persuaded that the provisions of the CPR, however liberally interpreted, have led to a significant change in law and practice. He noted the Law Commission's paper on Third Parties - Rights against Insurers Cm 5217 2001, which made it clear that details of insurance were a private matter between the insurer and the insured, and that it would encourage 'deep pocket' litigation if parties were forced to disclose such arrangements. Notably, this paper had not been drawn to the attention of Irwin J in Harcourt. Steel J also referred to the position in the US under the Federal Rules of Civil Procedure, which now expressly impose an obligation to disclose insurance cover.

These two conflicting decisions clearly raise interesting questions both for claimants and insurers. The outcome in Harcourt appears to have been significantly influenced by its particular facts and this must be borne in mind when assessing the risk to insurers of being ordered to provide details of insurance arrangements. Of particular relevance in Harcourt was that a certificate of insurance had been disclosed by the defendants by accident indicating that there was likely to be inadequate cover; liability and quantum had largely been established; and the defendants had not shown that they would suffer any specific prejudice from having to disclose the insurance information. Moreover, in stark contrast to West London Pipeline, Harcourt involved a vulnerable young claimant who had suffered a horrific injury.

West London Pipeline should therefore offer some relief to insurers because it appears to show that Harcourt was wrongly decided or else based on its own facts and should therefore be distinguishable. Possibly more will be heard from the Court of Appeal to clarify the conflicting judgments. In the meantime, there is scope for defendants and their insurers to stand on both sides of the fence, either relying on West London Pipeline to refuse requests for disclosure or alternatively relying on Harcourt to support requests against third parties in contribution proceedings. On the receiving end of requests, an alternative solution may be to find a compromise whereby insurers provide sufficient information about insurance cover to enable the claimant to determine whether to pursue the claim without revealing full details of the cover provided. Whilst neither of these cases involved professional defendants, there is nothing to stop claimants (or professionals bringing Part 20 proceedings) arguing that Harcourt applies. It remains to be seen where the courts will draw the line.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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