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Caselaw Review: Barr v Biffa Waste Services Ltd

The Issues: Should the Claimants in this group action be required to disclose a copy of their After the Event Insurance policy to allow the Defendant to examine the extent of protection provided by the policy and to assess its potential financial exposure.

Held: Traditionally, insurance policies were considered a private matter between the insured and the insurer and were therefore not generally disclosable. However, ATE insurance policies are a relatively modern creation and there were far fewer decisions dealing with disclosure, or other issues.

It was held that there was a difference between liability or BTE insurance, which may have been in existence for years before and have nothing to do with the events which gave rise to an action, and ATE insurance, the inception of which might be the trigger for the proceedings. In this case, the group litigation depended on the After the Event insurance policy without which there would be no proceedings at all (para 43). The Claimants’ solicitors had sent a mail shot letter to potential claimants referring to a no win no fee agreement and to the existence of the ATE insurance policy "to cover any potential cost liability”.

For these reasons it was concluded that the ATE insurance policy was a relevant document to these proceedings and, in accordance with CPR31.14, it should be disclosed for inspection, but with the amounts of the premiums redacted (para 52).

Comment: Although the facts were rather unusual in this case the principle that an ATE insurance policy is disclosable does seem to have been set, and this is especially the case where the action is only being pursued because of the existence of the After the Event Insurance policy.

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