XYZ V VARIOUS DEFENDANTS [2013] EWHC 3643 (QB)
FACTS:-
This was a group litigation in which nearly a thousand women sought damages from companies running private hospitals for supplying to them defective implants manufactured by the French company, PIP, for use in breast implant surgery. A significant number of the Claimants also brought actions against the providers of credit cards pursuant to the Consumer Credit Act 1974 (as amended by the 2006 Act). The total value of the claims was in the region of £13m, plus costs on both sides. Over 670 claims were brought against the Second Defendant, Transform Medical Group. Another defendant, Harley Medical Group, which faced 1200 claims, went into liquidation at an early point in this litigation.
There was to be a trial of several issues in four sample cases in which Transform was, effectively, the lead Defendant. The decisions on those issues should lead to the resolution of the whole of the group litigation. If the Claimants succeeded at trial, their cases and the others should be amenable to settlement. If not, there would be a need for some relatively short hearings on quantum. If the Claimants failed it was most unlikely that there would be a need for further hearings.
The Claimants wished to know whether Transform had sufficient insurance to (i) fund its participation at trial, and (ii) to meet any order for damages and (iii) costs. An application was made to the court to that effect.
JUDGEMENT:-
Justice Thirlwall referred to a statement in support of the application, which referred to investigations carried out on Transform, which showed that its parent company, Health and Surgical Holdings Ltd was technically insolvent. Furthermore there was no assurance that Transform had adequate insurance.
The Claimants relied on CPR 3.1 (2) (m) and CPR 18. Thirlwall J referred to the case of Harcourt v Griffin [2007] EWHC 1500 (QB) where Irwin J said:-
"the nature and extent of the defendant's insurance cover is not in itself "a matter…in dispute in the proceedings" between the parties, in the sense that proper quantum of damages payable to the claimant could be determined without determining whether the defendant can actually pay those damages. However, it appears to me that the wording of CPR rule 18 requires to be interpreted reasonably liberally. The purpose of the jurisdiction must be taken to be to ensure that the parties have all the information they need to deal efficiently and justly with the matters which are in dispute between them. Moreover the wording need not be taken to imply that there must be a live disagreement about the relevant issue, since on very many occasions parties are properly required to furnish information pursuant to CPR rule 18 precisely to discover whether there is or is not a live disagreement between the parties on a given point. The whole thrust of the new approach to civil litigation enshrined in the CPR is to avoid waste of time and cost and to ensure swift and as far as possible, proportionate and economical litigation. Therefore, I have no hesitation in finding that if there is no rule of law or significant rule of practice to the contrary then the wording of CPR rule 18 is broad enough to cover information of this kind."
That case was relied on in West London Pipeline and Storage v Total (UK) Ltd and TAV and others [2008] EWHC 1296 (Comm) but the application in that case was refused. Thirlwall J referred to the other following cases:-
Thirlwall J accepted that the Claimants' request did not come within Part 18. The insurance position of the Defendant was not a matter in dispute in these proceedings. Information about it did not relate to any matter in dispute.
Thirwall J then considered CPR 3.1(2) (m) and CPR r.1(2)(m) which provided:
"except where these rules provide otherwise, the court may ….take any …step or make any…..order for the purpose of managing the case and furthering the overriding objective."
The overriding objective was amended recently so as to require the court to deal with cases justly and at proportionate cost. Dealing with cases justly always included, so far as was practicable, dealing with a case in a way which was proportionate to the financial position of each party (1.1 (2) (iv)).
Thirwall J said that CPR 3.1 (2) (m) was a case management rule. Whether or not the Claimants would be able to enforce judgment was not a matter which affects case management. Thirlwall J was satisfied therefore that she should not make any order which required Transform to provide the answers to the questions as to whether it could meet any damages and costs order.
However the question of whether or not Transform could fund this litigation to trial (and any appeal) did affect case management. Dealing with a case justly included (see CPR 1.1 (2) (e)) allotting to it an appropriate share of the court's resources. Were Thirlwall J to revise the directions now and it later transpired that Transform had been adequately insured all along, the litigation would plainly have consumed (indeed wasted) more than its appropriate share of the court's resources for no good reason. That could not adequately be remedied in costs. Consequently CPR 3.1 (2)(m) did give the court the power to order Transform to provide to the court a witness statement (or statements) setting out whether Transform had insurance adequate to fund its participation in this litigation to the completion of the trial and the conclusion of any appeal.
FACTS:-
This was a group litigation in which nearly a thousand women sought damages from companies running private hospitals for supplying to them defective implants manufactured by the French company, PIP, for use in breast implant surgery. A significant number of the Claimants also brought actions against the providers of credit cards pursuant to the Consumer Credit Act 1974 (as amended by the 2006 Act). The total value of the claims was in the region of £13m, plus costs on both sides. Over 670 claims were brought against the Second Defendant, Transform Medical Group. Another defendant, Harley Medical Group, which faced 1200 claims, went into liquidation at an early point in this litigation.
There was to be a trial of several issues in four sample cases in which Transform was, effectively, the lead Defendant. The decisions on those issues should lead to the resolution of the whole of the group litigation. If the Claimants succeeded at trial, their cases and the others should be amenable to settlement. If not, there would be a need for some relatively short hearings on quantum. If the Claimants failed it was most unlikely that there would be a need for further hearings.
The Claimants wished to know whether Transform had sufficient insurance to (i) fund its participation at trial, and (ii) to meet any order for damages and (iii) costs. An application was made to the court to that effect.
JUDGEMENT:-
Justice Thirlwall referred to a statement in support of the application, which referred to investigations carried out on Transform, which showed that its parent company, Health and Surgical Holdings Ltd was technically insolvent. Furthermore there was no assurance that Transform had adequate insurance.
The Claimants relied on CPR 3.1 (2) (m) and CPR 18. Thirlwall J referred to the case of Harcourt v Griffin [2007] EWHC 1500 (QB) where Irwin J said:-
"the nature and extent of the defendant's insurance cover is not in itself "a matter…in dispute in the proceedings" between the parties, in the sense that proper quantum of damages payable to the claimant could be determined without determining whether the defendant can actually pay those damages. However, it appears to me that the wording of CPR rule 18 requires to be interpreted reasonably liberally. The purpose of the jurisdiction must be taken to be to ensure that the parties have all the information they need to deal efficiently and justly with the matters which are in dispute between them. Moreover the wording need not be taken to imply that there must be a live disagreement about the relevant issue, since on very many occasions parties are properly required to furnish information pursuant to CPR rule 18 precisely to discover whether there is or is not a live disagreement between the parties on a given point. The whole thrust of the new approach to civil litigation enshrined in the CPR is to avoid waste of time and cost and to ensure swift and as far as possible, proportionate and economical litigation. Therefore, I have no hesitation in finding that if there is no rule of law or significant rule of practice to the contrary then the wording of CPR rule 18 is broad enough to cover information of this kind."
That case was relied on in West London Pipeline and Storage v Total (UK) Ltd and TAV and others [2008] EWHC 1296 (Comm) but the application in that case was refused. Thirlwall J referred to the other following cases:-
- Bekhor v Bilton [1981] QB 923
- Cox v Bankside Members Agency C/A 29 November 1994
Thirlwall J accepted that the Claimants' request did not come within Part 18. The insurance position of the Defendant was not a matter in dispute in these proceedings. Information about it did not relate to any matter in dispute.
Thirwall J then considered CPR 3.1(2) (m) and CPR r.1(2)(m) which provided:
"except where these rules provide otherwise, the court may ….take any …step or make any…..order for the purpose of managing the case and furthering the overriding objective."
The overriding objective was amended recently so as to require the court to deal with cases justly and at proportionate cost. Dealing with cases justly always included, so far as was practicable, dealing with a case in a way which was proportionate to the financial position of each party (1.1 (2) (iv)).
Thirwall J said that CPR 3.1 (2) (m) was a case management rule. Whether or not the Claimants would be able to enforce judgment was not a matter which affects case management. Thirlwall J was satisfied therefore that she should not make any order which required Transform to provide the answers to the questions as to whether it could meet any damages and costs order.
However the question of whether or not Transform could fund this litigation to trial (and any appeal) did affect case management. Dealing with a case justly included (see CPR 1.1 (2) (e)) allotting to it an appropriate share of the court's resources. Were Thirlwall J to revise the directions now and it later transpired that Transform had been adequately insured all along, the litigation would plainly have consumed (indeed wasted) more than its appropriate share of the court's resources for no good reason. That could not adequately be remedied in costs. Consequently CPR 3.1 (2)(m) did give the court the power to order Transform to provide to the court a witness statement (or statements) setting out whether Transform had insurance adequate to fund its participation in this litigation to the completion of the trial and the conclusion of any appeal.