Barr & Ors v Biffa Waste Services Ltd

Factual and Procedural Background

The Claimants initiated claims in nuisance and negligence against the Defendant concerning odour emissions from the Defendant's landfill site. Approximately 140 households on a single housing estate near the site were involved. The litigation was pursued via a Group Litigation Order ("GLO") to manage the numerous claims collectively. The Defendant consented to the GLO but sought as a condition the disclosure of the Claimants' After The Event ("ATE") Insurance Policy, which supports their Conditional Fee Agreement ("CFA").

The GLO was granted by Ramsey J and approved by the President of the Queen's Bench Division, with the Claimants' liability for costs being several, not joint. The Defendant's request for disclosure of the ATE Policy was deferred initially to allow the insurers to intervene. At the subsequent hearing, the Defendant renewed its application for disclosure, which the Claimants and the Intervening Insurers resisted. The court reserved judgment after hearing extensive submissions.

Legal Issues Presented

1. Whether the ATE Insurance Policy is disclosable to the Defendant pursuant to CPR 31.14, given it was mentioned in witness statements supporting the GLO application.
2. Whether the ATE Policy is relevant to the litigation and thus subject to disclosure.
3. Whether the ATE Policy is protected by litigation privilege and therefore exempt from disclosure.
4. Whether the court's general case management powers under CPR Parts 3 and 19, and related provisions, permit or require disclosure of the ATE Policy despite the Claimants' objections.
5. The extent to which the CPR Practice Direction 44 PD Section 19 restricts or allows disclosure beyond the minimum funding information provided.

Arguments of the Parties

Defendant's Arguments

• The Defendant needs disclosure of the ATE Policy to assess its potential financial exposure, particularly to ensure that it can recover its costs if successful at trial.
• The Defendant cannot evaluate the adequacy of the Claimants' insurance cover or identify any exclusion clauses without seeing the Policy.
• Disclosure is necessary for the Defendant to consider applications such as costs-capping or amendments to the GLO's cost provisions.
• The ATE Policy has been mentioned in witness statements, triggering disclosure under CPR 31.14, and the Policy is neither privileged nor irrelevant.
• Alternatively, disclosure should be ordered under the court’s general case management powers (CPR Parts 3 and 19).
• The Defendant is willing to accept redactions of premium amounts to protect potentially privileged information about legal advice.
• Relied on precedents including Hobson v AMS Solicitors and Henry v BBC, supporting disclosure of ATE Policies.

Claimants' and Intervening Insurers' Arguments

• Although no specific detriment was identified from disclosure, as a matter of principle the ATE Policy is not disclosable.
• In response to CPR 31.14, the Claimants argued that the Policy, despite being mentioned in witness statements, is either irrelevant or protected by litigation privilege.
• Relied on the decision in Total UK Limited v West London Pipe Line Storage Limited to argue that insurance policies are private and irrelevant to the issues between parties and thus not disclosable.
• Maintained that the minimum funding information provided under Practice Direction 44 PD Section 19 suffices and no further disclosure of the Policy is required.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the legal framework governing disclosure in group litigation and funding arrangements under the Civil Procedure Rules (CPR), particularly CPR 31.14 concerning documents mentioned in witness statements, and the court’s case management powers under CPR Parts 3 and 19. It recognized the traditional approach to liability insurance policies as private and generally non-disclosable, but distinguished ATE Insurance Policies as fundamentally different because they are often critical to the existence and funding of the litigation itself.

The court found that the ATE Policy had been deliberately and expressly mentioned in the Claimants’ witness statements supporting the GLO application, thereby triggering disclosure obligations under CPR 31.14 unless the document was irrelevant or privileged. The court rejected the Claimants’ argument that the Policy was irrelevant, noting that the Claimants had themselves acknowledged its relevance in correspondence and that without the Policy there would be no litigation. The court also rejected the claim of litigation privilege over the Policy, finding that the Policy was not a communication containing legal advice or created for the dominant purpose of litigation, save for the premium amounts which could reflect legal advice and thus were ordered redacted.

Balancing the parties’ interests, the court emphasized the Defendant’s legitimate interest in understanding the extent and limits of the Claimants’ insurance cover to assess potential cost exposure if successful, ensuring a level playing field. The Claimants failed to identify any specific prejudice arising from disclosure. The court also considered the Practice Direction 44 PD Section 19, concluding it sets minimum disclosure requirements but does not restrict the court’s wider case management powers to order fuller disclosure when justified.

Accordingly, the court concluded that disclosure of the ATE Policy, with premium amounts redacted, was necessary to do justice between the parties. The court noted that if the disclosure application had been heard with the GLO application, the GLO would have been granted on the condition of such disclosure.

Holding and Implications

The court ORDERED DISCLOSURE of the Claimants’ After The Event Insurance Policy pursuant to CPR 31.14 and the court’s general case management powers, subject to redaction of the premium amounts to protect privileged information.

The direct effect of this decision is that the Defendant is entitled to inspect the full terms of the ATE Policy to assess its coverage and any exclusions, thereby enabling informed decisions about costs recovery and case management. The ruling clarifies that, in group litigation where ATE Insurance is integral to funding, such policies are disclosable despite traditional confidentiality norms applicable to liability insurance policies. No broader precedent beyond the facts of this case is established, and the court reserved all other matters, including costs, for later determination.