West London Pipeline and Storage Ltd & Anor v Total UK Ltd & Ors

Factual and Procedural Background

This opinion concerns an application by the First and Second Defendants ("Total") seeking disclosure of insurance arrangements from the Third Party ("TAV") in relation to claims arising from the Buncefield explosion. Total seeks contribution from TAV for any liability Total may incur due to the alleged failure of a switch designed or supplied by TAV, which led to the explosion. The claims amount to over 700 million. Initially, TAV's defence included reliance on the modest cost of the switch and standard terms limiting liability to 5% of the contract price. Total responded that the cost was immaterial given the potential consequences and that insurance coverage was relevant to assessing liability and apportionment. TAV later proposed amending its defence to remove references to cost and standard terms, undermining one of Total's bases for the application. Despite this, Total continued to seek disclosure of TAV's insurance cover on grounds of relevance and case management efficiency.

Legal Issues Presented

1. Whether the insurance arrangements of the Third Party ("TAV") are relevant to the issues in the litigation, particularly in relation to apportionment of liability under the Civil Liability (Contribution) Act 1978.
2. Whether the court has jurisdiction and should exercise discretion to order disclosure of insurance information in the interests of efficient case management under the Civil Procedure Rules (CPR), specifically CPR Part 18.

Arguments of the Parties

Appellant's (Total's) Arguments

• The insurance information is relevant to apportionment of liability and the question of contribution.
• TAV is a non-trading company with minimal assets; its ability to pay damages depends on its insurance cover.
• Insurance cover is substantial and necessary to understand whether continuing litigation is worthwhile.
• Disclosure is justified under CPR Part 18 to avoid wasteful litigation if recovery is unlikely.
• Relied on the decision of Irwin J in Harcourt v FEF Griffin [2007] EWHC 1500 (QB), which allowed disclosure of insurance information to assess the utility of continuing litigation.

Appellee's (TAV's) Arguments

• Insurance documents are not disclosable under CPR Part 31 as they are not relevant to any issue in the action.
• Apportionment depends on culpability and causative potency, to which insurance is irrelevant.
• Insurance information is not a "matter in dispute" under CPR Part 18.
• There is a well-established rule that confidential insurance information should not be disclosed to opposing parties, except under specific statutory exceptions.
• Disclosure would give an unfair tactical advantage and lead to wasteful satellite litigation.
• The decision in Harcourt was wrong and did not consider relevant authorities.
• The court should exercise discretion against disclosure due to prejudice, timing late in litigation, and lack of undertakings to abandon claims.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the relevance of insurance information to apportionment under the Civil Liability (Contribution) Act 1978. It reaffirmed that apportionment depends on blameworthiness and causative potency, and that non-causative factors are only exceptionally relevant if closely connected to the causative conduct. The existence or scope of insurance cover was found to have no connection to causative conduct and thus no material relevance to apportionment.

The court then examined whether disclosure could be ordered under CPR Part 18 for case management purposes. While the court acknowledged the decision in Harcourt, it noted that the insurance information was not a matter in dispute and that the CPR requires requests to be proportionate and necessary to prepare or understand the case. The court found that insurance information did not meet this threshold, as it did not affect the preparation or understanding of the defence.

The court considered the arguments against disclosure, including the confidentiality of insurance contracts, the absence of statutory authority for disclosure, and the potential for prejudice and satellite litigation. The court also referred to established case law that limits disclosure to documents relating to matters in question in the cause, rejecting the notion that knowledge of an opponent's financial resources justifies disclosure.

Despite recognizing the modern trend towards openness in litigation, the court concluded that the CPR does not provide jurisdiction to compel disclosure of insurance information in these circumstances. It expressed hesitation, noting the practical importance of such information to claimants, but emphasized that any change in law or practice would require legislative action rather than judicial reinterpretation of the CPR.

Holding and Implications

The court's final ruling was to REFUSE the application by Total for disclosure of TAV's insurance arrangements.

The direct effect is that TAV is not required to disclose its insurance cover in this litigation. The court confirmed that insurance information is not relevant to apportionment of liability nor is it a matter in dispute warranting disclosure under the CPR. No new precedent was established, and the decision maintains the existing legal position that insurance details remain confidential and are not subject to disclosure absent specific statutory authority.