Confidential or privileged information

In A Lloyd’s Syndicate v X [2011] EWHC 2487 (Comm), Teare J was asked to grant an injunction to restrain the defendant, an expert witness, from giving evidence as to the construction of a clause in a reinsurance contract. The expert had discussed that very wording with the claimant’s solicitors two years earlier, but in the context of a different arbitration in which the expert was acting for the claimant. Teare J refused relief on the facts and did not address wider jurisdictional issues.

The facts

The claimant was a Lloyd’s Syndicate. In June 2007 the Syndicate instructed X, who had worked for some 35 years in the aviation reinsurance market, to act as an expert in a claim against Reinsurer A. Both the claimant and Reinsurer A were members of a reinsurance pool, and a dispute had arisen in respect of losses arising from the events of 9/11. At the same time, X was acting as consultant to Reinsurer B on unrelated matters. In September 2007 the claimant informed X that it had a separate dispute with Reinsurer B and was anxious that nothing about the claim against Reinsurer A should leak out. By February 2009 Reinsurer B had rejected claims made against it by the claimant, and a part of Reinsurer B’s argument was that an ‘Interlocking Clause’ operated to reduce its liability. A clause of this type allocates individual losses between two or more years by reducing the deductible and level of indemnity in each year in proportion to the loss. The dispute was whether Reinsurer B was correct in asserting that the Interlocking Clause operated to apportion losses between different period of reinsurance whether or not the reinsured had reinsurance in each of those years.