West London Pipeline and Storage Ltd & Anor v Total UK Ltd & Ors

Insurance cover is not ordinarily relevant to apportionment under the Civil Liability (Contribution) Act 1978. Non-causative factors may be considered only exceptionally and where closely connected with the causative conduct giving rise to liability. The existence or scope of liability insurance has no such connection. Nor does the court have jurisdiction under the Civil Procedure Rules to order disclosure of insurance information merely because it may show whether continuing litigation is economically worthwhile. Information must relate to a matter in dispute or be reasonably necessary and proportionate to preparing or understanding a party’s case. The overriding objective cannot be used to rewrite those limits.

Total sought contribution from TAV in litigation arising from the Buncefield explosion. Total alleged that a TAV switch had failed and caused the fuel overflow. TAV had originally relied on the modest cost of the switch and contractual liability limits, but proposed deleting those matters from its defence.

Total nevertheless sought information and disclosure concerning TAV’s liability insurance. It argued that the information was relevant to apportionment or was necessary for case management because TAV appeared unable to meet the substantial costs or any judgment. The application raised the scope of disclosure under CPR Parts 18 and 31, and whether the court could order disclosure to determine whether further litigation would be economically useful.

1. Application dismissed. The court had no jurisdiction to order disclosure of TAV’s insurance position.
2. Under the Civil Liability (Contribution) Act 1978, contribution is determined by what is just and equitable having regard to the person’s responsibility for the damage. This requires consideration of blameworthiness and causative potency. Non-causative breaches or other factors may exceptionally be relevant, but there must be a close connection between those factors and the causative activity giving rise to liability.
3. The existence or scope of insurance has no connection with the alleged causative conduct. It was therefore irrelevant to apportionment. TAV was not relying on its status as a small or impecunious business in support of its case.
4. The policies were not disclosable under CPR Part 31. They did not support or adversely affect any party’s case, were not relevant to the issues, and could not lead to a train of inquiry enabling a party to advance its case or damage its opponent’s case.
5. CPR Part 18 could not provide an alternative jurisdiction. The insurance position did not relate to a matter in dispute. The Practice Direction required requests to be confined to matters reasonably necessary and proportionate to enable a party to prepare its case or understand the case it had to answer. The overriding objective did not authorise a broader order and could not justify rewriting the rule or Practice Direction.
6. Harcourt v FEF Griffin [2007] EWHC 1500 (QB) reached a contrary conclusion, but the judge had not been referred to relevant authorities and statutory material. The court declined to follow that approach. Bekhor v Bilton [1981] QB 923 and Cox v Bankside Members Agency supported the conclusion that information about financial resources, although potentially useful in deciding whether litigation was worth pursuing, did not relate to the legal matters in issue.

First-instance decision. No prior appellate history is stated in the judgment.