Barr & Ors v Biffa Waste Services Ltd

An after-the-event insurance policy may be disclosable where it is integral to group litigation, particularly where the proceedings would not have been pursued without the policy. Deliberate mention of the policy in a witness statement engages CPR 31.14, subject to relevance and privilege. The policy is relevant because it informs the defendant and the court about potential costs recovery, limits of cover and exclusions. It is not ordinarily protected by litigation privilege, although premium amounts may be redacted where they could reveal legal advice. The funding-information provisions in the Costs Practice Direction establish minimum requirements and do not restrict the court’s wider case-management powers.

The claimants sought a group litigation order concerning alleged odour nuisance and negligence arising from a landfill site. The order was made, but determination of the defendant’s application for disclosure of the claimants’ ATE insurance policy was deferred so that the insurers could intervene. The policy had been mentioned in witness statements supporting the group litigation application. The defendant argued that it was relevant under CPR 31.14 and should alternatively be disclosed under the court’s general case-management powers. The claimants and insurers relied on relevance, litigation privilege and the traditional approach to liability insurance policies. The central issues were whether the ATE policy was relevant and privileged, and whether the CPR permitted its disclosure.

1. The defendant’s application succeeded. The ATE policy was ordered to be disclosed for inspection, with the premium amounts redacted.
2. The policy had been deliberately mentioned in a witness statement deployed in support of the group litigation application. Applying the approach in Expandable Ltd v Rubin, that mention triggered disclosure under CPR 31.14, subject to relevance and privilege.
3. The policy was relevant. The group litigation would probably not have proceeded without ATE insurance, and the policy’s limits and exclusions were material to the defendant’s potential recovery of costs and to the court’s management of the litigation. The claimants’ solicitors’ summary of the policy did not remove the need for disclosure.
4. The policy was not protected by litigation privilege. It was neither legal advice nor a communication falling within the recognised categories of litigation privilege. However, the premium amounts could potentially reveal legal advice and were therefore to be redacted.
5. The traditional approach concerning pre-existing liability insurance policies did not directly apply to ATE insurance taken out to enable group litigation. The court agreed with the approaches in Hobson v Ashdown Morton Slack Solicitors and Henry v British Broadcasting Corporation concerning the relevance and disclosure of ATE insurance.
6. Alternatively, disclosure was justified under the court’s general case-management powers. The court had to balance the defendant’s legitimate need to assess its costs exposure against any prejudice to the claimants. No particular prejudice was demonstrated. Disclosure was proportionate and consistent with the overriding objective.
7. The funding provisions in 44 PD section 19 prescribed minimum information and did not restrict the court’s wider powers under the CPR. In appropriate circumstances, the court could order disclosure of more information, including the policy itself.