BARR V BIFFA WASTE SERVICES LTD

[2009] EWHC 1033 (TCC), Queen’s Bench Division, Technology and Construction Court, Mr Justice Coulson, 23 April 2009

Insurance (after the event) – Group Litigation Order – Application by defendant for disclosure of claimants’ ATE policy – Whether disclosure should be ordered – Case management – Civil Procedure Rules 1, 3, 18.1, 31.14, 44.15 and Practice Direction 44

The defendant operated a landfill site in Hertfordshire, and faced some 140 nuisance and negligence claims from neighbouring households, alleging odour omissions from the site. The claimants obtained an After the Event policy, and the defendant was informed about this but the defendant’s request for disclosure of the policy was denied. The claimants applied to the court for a Group Litigation Order, and the defendant sought disclosure of the ATE policy as a condition of the order. Coulson J held that the policy should be disclosed. (1) Although the law did not allow the disclosure of liability policies to claimants, the position of ATE insurance was distinguishable. (2) An order could be made under CPR 31.14, which states that a party may inspect a document which is mentioned in a statement of case, a witness statement, a witness summary or an affidavit. An order would be made unless the document was protected by litigation privilege or unless it was irrelevant. (3) An ATE policy was not protected by litigation privilege – it did not fall into any protected category. (4) The policy was relevant to the proceedings because: it underlay the application for the GLO; there would be no proceedings without the GLO, given that each individual claim was relatively small and probably not worth the costs risk; and terms of the policy were relevant to the issues before the court. (5) In the alternative disclosure would be ordered under the court’s general case management powers in CPR 1 and 3: the defendant was entitled to know if the claimants were good for any costs order, and there was no prejudice by requiring disclosure.