Barr and Others v Biffa Waste Services Ltd [2009]

FACTS:-

The claims in private nuisance/negligence arose due to the odour omissions of from the Defendant’s Westmill Landfill site.  The defendant was a well-known waste contractor who operated a landfill site in Hertfordshire. The claimants were the owners of 140 households, on a single housing estate near the site.

Prior to the commencement of proceedings for nuisance and negligence against the defendant, the claimants’ solicitors disclosed that their clients had obtained ‘After the Event’ insurance from the intervenor. In March 2009, the claimants successfully applied for a group litigation order, pursuant to CPR 19 and the applicable provisions in CPR Pts 3, 43 and 44. The defendant sought further disclosure relating to the claimants’ insurance. The claimants’ solicitors rejected the defendant’s request and the defendant applied to the court for the disclosure sought.

The defendant argued, inter alia, that since the insurance policy had been mentioned in correspondence, it was entitled to see the policy pursuant to CPR 31.14. It rejected any suggestion that the policy was either a privileged document or was irrelevant. The claimants and the intervenor submitted that the insurance policy was not disclosable.

HELD:-

The application was allowed and the Defendant was entitled to the disclosure and inspection order sought.

Mr Justice Coulson found that the considerations arising on an application for disclosure of an ATE Insurance Policy may be different to those that arise in relation to a conventional liability insurance policy.  In this case the ATE Policy was an integral element of the group litigation itself.  Mr Justice Coulson further found that on proper consideration of the court’s case management powers under the CPR, the order for disclosure of the Policy should be allowed.  44PD.19 was not to be read as restricting or preventing the court from exercising those powers in the best way to meet the overriding objective.  It was concluded that depending on the particular application and its reasons, the terms of an ATE Insurance Policy, and even the level of success fee, may be matters which are required to be disclosed in order to deal fairly and justly with any given litigation.

In this case therefore, when the court’s case management powers were given consideration, the Defendant was entitled to disclosure and inspection order sought.

It was held that the ATE Insurance Policy referred to in the original statement was a discloseable document pursuant to CPR 31.14.  The document was relevant and not privileged.  In consideration to the court’s case management powers, on the material available in the case the ATE Policy should be disclosed, to properly do justice between the parties.  44PD.19 does not prohibit or prevent such an order.

Mr Justice Coulson clarified that, if the application for disclosure had been argued at the same time as the application for the Group Litigation Order, he would have made the Group Litigation Order on the condition that the ATE Policy was disclosed, but with the amount of premiums redacted.

Related posts:

1. Vose v Barr [1966]