London & Quadrant Housing Trust & Anor v WPHV Ltd (in administration) & Ors

An application for disclosure guidance under Practice Direction 57AD is appropriate only where there is a significant, identifiable difference of approach between the parties and the issue is suitable for informal guidance. It is not a vehicle for obtaining a full determination of privilege principles before documents have been reviewed, redactions made, or privilege claims asserted. Questions arising under the Third Parties (Rights against Insurers) Act 2010, including alleged waiver of privilege, should be raised in an appropriate substantive application. Where an application is not properly brought under the disclosure-guidance procedure, the usual costs provision does not prevent a different costs order.

The claimants sought disclosure guidance under Practice Direction 57AD concerning the redaction or withholding of documents relating to notifications to insurers of claims or circumstances. They also sought an order requiring documents supplied by brokers to be disclosed within three days.

The claimants argued that privilege could not be asserted against them because they claimed against insurers under the Third Parties (Rights against Insurers) Act 2010, and that the insurers had waived privilege by putting notification within policy periods in issue. The defendants maintained that relevant documents would be reviewed and, where necessary, redacted.

The central issues were whether the application was suitable and sufficiently mature for disclosure guidance, whether the court should determine the privilege arguments, and the appropriate costs order.

1. Application dismissed. The application was premature and inappropriate under Practice Direction 57AD paragraph 11. At the time it was issued, the parties had not yet reached a significant, identifiable difference of approach because the defendants had not reviewed the documents, made redactions, or provided documents in redacted form.
2. Disclosure guidance is intended to address a genuine difference between the parties by informal guidance on the conduct of a particular aspect of disclosure. It is not ordinarily suitable for a full determination of questions of privilege or for wide orders governing whether privilege may be asserted.
3. A substantive determination of privilege, including the arguments based on the Third Parties (Rights against Insurers) Act 2010 and alleged waiver, should be sought by an appropriate application, most likely within the procedure contemplated by Practice Direction 57AD paragraph 14. Those arguments were not abandoned, but were expressly left undecided.
4. Any future dispute arising after redacted documents have been provided should be brought by a further application addressing the particular documents and privilege claims then in issue.
5. The costs provision in Practice Direction 57AD paragraph 11.5 did not require costs to be costs in the case because the application did not have the character of an application for informal disclosure guidance. The claimants, as the losing parties, were ordered to pay 75 per cent of the defendants’ summarily assessed costs, reflecting the case-management utility of discussing the parameters of redactions. Specific costs were assessed for the defendant groups.