Society Of Lloyd's v Sir William Jaffray & Ors

A confidentiality order should not generally be set aside late where confidential material was supplied in reliance on the order and the parties raised no timely objection. In group litigation, litigants in person may be expected to rely on the legal representatives conducting the litigation. The court should consider the relevance of the information sought and any resulting prejudice. Parties should not be joined merely to obtain discovery; the proper procedure is ordinarily a subpoena.

Sir William Jaffray applied in the Court of Appeal for London Market Claims Services Limited and the Equitas companies to be joined to the proceedings, principally so that discovery applications could be made against them. He also sought to set aside a confidentiality order made by Cresswell J on 16 June 2000 concerning Equitas reserve information. An earlier application concerning an order of 10 December 1999 was not pursued. The central issues were whether the confidentiality order should be lifted and whether joinder was an appropriate means of obtaining documents.

The Master of the Rolls gave the judgment of the court. Lord Justice Waller and Lord Justice Clarke agreed. The application was dismissed.

1. Confidentiality order. The application to set aside the order of 16 June 2000 was refused. It came too late: Equitas had supplied confidential information in reliance on the order and the accompanying undertakings, and no objection had been raised when the order was made. The court considered it wrong to permit access to the litigants in person on that basis, although it was not certain that setting aside the order would necessarily produce that result.
2. The proceedings were group litigation. Such litigation proceeds on the basis that legal representatives conduct the case, while litigants in person have a limited role and rely on the professionals to protect their interests. The principal reasons advanced for obtaining the information were irrelevant to the issues in the litigation. Under-reserving was relevant but was not in issue; alleged under-capitalisation or insolvency would not advance the Names’ case. The Names had suffered no prejudice because their lawyers could use the information, subject to the confidentiality safeguards.
3. Joinder and discovery. The application to join LMCS and Equitas was also refused. Its further purpose was to enable discovery applications. It was misconceived to join substantive parties merely to obtain discovery. The appropriate course was to issue a subpoena.

The application arose in proceedings in the Queen’s Bench Division before Mr Justice Cresswell. The Court of Appeal (Civil Division), comprising the Master of the Rolls, Lord Justice Waller and Lord Justice Clarke, dismissed the applications. No citation for the lower court decision is stated in the judgment.