Novitas Loans Limited v AmTrust Europe Limited

Disclosure directed to generic issues should not require evidence about individual claims where those issues are framed on stated factual assumptions. If the court can determine the generic questions without resolving the facts of particular claims, disclosure concerning thousands of individual claims has no useful role in the initial issues trial. Such disclosure may also enter territory previously excluded because findings about particular claims would not provide meaningful guidance capable of extrapolation across the wider pool.

The ruling concerned the final disputed disclosure issue in proceedings involving AmTrust’s alleged subrogation claims against insurers of a scheme solicitor. Sompo sought to add two issues to the disclosure list concerning the source and form of claims paid by AmTrust and AmTrust’s response to those claims.

The proposed disclosure was said to assist with Generic Issues 13 and 14, which concerned whether AmTrust acquired rights of suit by subrogation and whether particular matters prevented that entitlement. The court considered whether those generic issues required disclosure about individual claims.

1. Disclosure Issues 1 and 2 were not included. They concerned the circumstances in which particular claims were received, handled and paid, including communications and the basis and terms of payment.
2. Generic Issues 13 and 14 were framed by reference to assumptions, including that AmTrust received claims by or on behalf of insureds, accepted liability under the policies, made payments pursuant to the policies or the indemnity, disputed its obligation to indemnify, and made payments in good faith to satisfy policyholders’ losses.
3. Those assumptions did not require factual determination by the court. The generic issues could therefore be decided without disclosure relating to individual claims.
4. The proposed disclosure also entered the forbidden territory identified at the second case management conference, because there were more than 2,000 individual claims. The court adopted the concern expressed at the first case management conference that factual findings about particular claims would not necessarily crystallise an issue of principle or a factor capable of meaningful extrapolation across the wider pool.
5. Although some disclosure might reduce the risk of misleading impressions arising from limited disclosure, that possible benefit did not outweigh the absence of useful evidential value in the context of the generic issues as formulated.

The ruling was a first-instance case-management decision. The judgment records earlier case-management conferences concerning the scope of the initial issues trial and disclosure, but no appellate decision.