Zenith Insurance Plc v LPS Solicitors Ltd

An application for further disclosure must be tied to a properly identified cause of action and to the statutory or procedural conditions governing the relief sought. Under CPR 31.16, each jurisdictional requirement must be satisfied, including that the respondent is likely to be a party to subsequent proceedings, that the documents would fall within standard disclosure, and that pre-action disclosure is desirable. The jurisdiction must not be used as a fishing expedition.

A Norwich Pharmacal order is exceptional and available only where disclosure is necessary to enable proceedings against an ultimate wrongdoer. It must be focused and no wider than strictly necessary. A second application following substantial compliance with an earlier order requires a clear and particularised justification.

Zenith sought further disclosure from LPS after an earlier order made by Mrs Justice Cockerill had resulted in nearly 500 pages of documents concerning three allegedly fraudulent personal-injury claims. Zenith alleged that the claims had been brought using the identities of persons who denied involvement.

The application sought ten categories of documents, relying principally on CPR 31.16 and alternatively on the Norwich Pharmacal jurisdiction. Zenith contemplated possible claims in deceit or negligence against persons involved in the alleged fraud, but accepted that it lacked evidence to plead deceit against LPS and that any negligence claim would be novel. The central issues were whether the further documents were within the relevant jurisdiction and whether the application was sufficiently justified.

1. Application dismissed. Zenith failed to explain why a second disclosure application was required after the earlier order and substantial production of documents. The alleged deficiencies were not particularised in correspondence, evidence or the application materials.
2. Under CPR 31.16, all conditions in paragraphs (a)–(d) must be satisfied. The respondent must be likely to be a party to subsequent proceedings, the applicant must also be likely to be a party, the documents must be documents which would fall within standard disclosure, and pre-action disclosure must be desirable for one of the specified purposes.
3. Applying Black and others v Sumitomo Corpn and Others [2001] EWCA Civ 1819, the jurisdictional threshold concerning desirability is low, but the discretionary decision must be made on the detailed facts. The court must guard against disclosure being used to discover whether a claimant has a case at all. Zenith had not shown that LPS was likely to be a defendant, that the requested categories would be subject to standard disclosure, or that disclosure was desirable.
4. The categories seeking communications already covered by the earlier order failed because no breach of that order was demonstrated. The requests for communications concerning the applications, case-management material, metadata, unrelated claim files and broad investigations were insufficiently focused and bore the hallmarks of a fishing exercise. The metadata request also failed to satisfy paragraph 28 of Practice Direction 31B, since relevance and materiality sufficient to justify the burden and cost had not been demonstrated.
5. Under the Norwich Pharmacal jurisdiction, the applicant must show an arguable wrong, the necessity of the order to enable proceedings against the ultimate wrongdoer, and that the respondent was mixed up in the wrongdoing and could provide the necessary information. The necessity requirement is a remedy of last resort. Zenith had not shown why further disclosure was necessary, particularly where documents had already been produced and the requests were wide-ranging.
6. The court declined to determine whether a Part 8 claim form was required for the Norwich Pharmacal aspect of a mixed application. Since the application failed on its merits, imposing a further procedural step would have been wasteful.

First-instance application. The judgment records an earlier disclosure order made by Mrs Justice Cockerill on 17 July 2019, but no appellate history is stated.