The English High Court has made an order in the case of the PIP breast implant litigation that under CPR 3.1(2)(m) the defendant is provide a witness statement setting out whether it has insurance adequate to fund its participation in the litigation to the completion of trial and the conclusion of any appeal. The judge’s reasoning was that the question of whether or not the defendant could fund the trial to litigation affected case management of the case.
CPR 3.1(2)(m) enables the court to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”. By CPR 18.1, the court may at any time order a party to (a) clarify any matter in dispute in the proceedings; or (b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case.
In the course of group litigation over faulty breast implants (involving an overall claim of around £13 million), the claimants (X) asked one of the defendants (T) to disclose the extent of its liability insurance cover for the claims. T refused, so X sought an order under CPR 3.1(2)(m) or CPR 18.1 requiring T to provide information as to whether it had sufficient insurance: (i) to fund its participation in the litigation to the end of the trial; (ii) to meet any order for damages; (iii) to meet any costs order.
Thirlwall J granted the application. He held that the evidence showed that T might not be able to fund the litigation to trial or meet any award of damages or costs. However X could not bring its request under CPR 18.1 as T’s insurance position was not a “matter in dispute” in the proceedings. Similarly the court could not use its case management powers under CPR 3.1(2) to order T to give information on whether it would be able to meet any award of damages or costs, as the issue of enforceability of a judgment was not a matter which affected case management.
However the issue of whether T could fund the litigation to trial did affect case management, so the judge ordered T (under CPR 3.1(2)(m)) to provide a witness statement, setting out whether it had adequate insurance to fund its participation in the litigation to the completion of the trial and any appeal. That knowledge would give the court sufficient information to be able to case-manage the litigation, in accordance with the overriding objective.
The interesting point about this judgment is the way in which the court used its case management powers as a tool for ordering disclosure of the defendant’s insurance policy.