Daniel King of DWF Chambers recently represented the Applicant in the High Court case of Wilson v Liverpool Victoria Insurance Company Limited [2023] in which the court was asked to determine the proper scope of CPR 31.22. This article explores the implications of the Judgment in the context of applications seeking permission for collateral disclosure of evidence in separate contribution proceedings, when the party providing the disclosure does not authorise its usage for that other purpose.
Defendants are often presented with claims in which it becomes apparent during the course of the litigation that a third party has in some way contributed to the losses claimed for by the Claimant. That third party may be fully or partially contributory negligent for the claim prosecuted against the Defendant.
The evidence presented in support of the claim often takes many different forms, and will be disclosed at different stages, and a Defendant will often seek to rely on such evidence in a separate claim for contribution against the third party pursuant to the Civil Liability (Contribution) Act 1978.
In a helpful decision for insurance practitioners in all fields, especially those in medical negligence, the High Court provided some guidance on the test to be satisfied by applicants seeking permission to rely on evidence disclosed in one set of proceedings, in support of a claim in completely separate proceedings to be brought against a third party.
Background
Mr Wilson was involved in a car accident in 2015 in which he sustained injuries requiring admission to hospital for care and treatment at the NHS Trust. Mr Wilson would go on to present with significant injuries and issued proceedings against the negligent driver of the fault vehicle and Liverpool Victoria Insurance Company Limited ["LV"] in its capacity as RTA Insurer.
During the course of its investigations into the claim, LV discovered potential issues in relation to the standard of care received by Mr Wilson post-accident whilst in the care of the NHS Trust. Rather than bring the NHS Trust into the index proceedings issued by Mr Wilson, which would have undoubtedly added time, expense, and delay of compromising Mr Wilson's claim, LV opted to settle the claim by consent in February 2021. LV subsequently sought to bring proceedings for a contribution against the NHS Trust pursuant to the Civil Liability (Contribution) Act 1978 and served them with a Letter of Claim indicating its intention to do so. In order to bring its claim against the NHS Trust, LV needed to rely on various evidence disclosed in the proceedings brought by Mr Wilson.
The evidence LV were seeking to rely upon comprised pleadings, medico-legal expert evidence, medical records, and Mr Wilson's witness statement. Mr Wilson refused to consent to them doing so.
LV subsequently applied to the High Court for permission to rely on this evidence in the contribution claim to be brought against the NHS Trust pursuant to Civil Procedure Rule 31.22(1)(b).
The application
In order to be able to rely on the evidence for use in the contribution proceedings, LV had to demonstrate that there were some special circumstances constituting a cogent reason for permitting collateral use [Lakatamia Shipping Co Ltd v Su [2020] EWHC 3201 (Comm); [2021] 1 W.L.R. 1097]. LV retained the burden of proving that there existed a clear exception to the general rule that a document disclosed in proceedings may only be used for the purpose of the proceedings in which it is disclosed.
The application acknowledged the four different classes of document LV sought permission to rely upon as follows:
i) Pleadings;
ii) Expert evidence;
iii) Mr Wilson's medical records;
iv) Mr Wilson's witness statement.
It was common ground between the parties that the relevant tests to be applied (both of which were nigh on identical in nature) were set out within CPR 31.22, which applied to documents i) to iii), whilst CPR 32.12 applied to document iv) (the witness statement).
As to the pleadings and expert evidence, LV relied on those documents having been referred to in a previous CCMC hearing that had taken place in the litigation issued by Mr Wilson (the witness statement had not yet been disclosed by that point). It did so by reason of the editorial notes to CPR 31.22.1 making it clear that if a document is referred to at a public hearing then "the default position will be one of open access" [Chodie v Stein (2016) EWHC 1210 (Comm) relied upon where the presumption in favour of open access to documents referred to in public hearings was not displaced by the generally private and confidential nature of the documents].
In respect of all evidence it was submitted that the test was met for the granting of permission for collateral use of the documents already disclosed by reason of i) there being a good reason for the usage; LV had a meritorious claim against the NHS Trust and to deny them that right would be to cause a substantial prejudice; and, ii) the court could be satisfied that there was no injustice caused to Mr Wilson. The timing of the contribution claim was a reasonable and proportionate step and had to be considered in light of otherwise entirely appropriate conduct of the Defendant, in deciding to settle one litigation efficiently and without condition, for which they should not be penalised. Moreover, any concerns of privacy infringement served upon Mr Wilson had to be considered in the context of how, and to who, those documents would be disclosed; the very NHS Trust who had bestowed the care upon him in the first place and had access to such records already.
The application was complicated by the Claimant's opposition to it being predicated upon the perceived retrospective nature of it. It was argued that usage had already taken place by virtue of the review of documents in contemplation of litigation against the NHS Trust. If that were so, the court had to consider the limited circumstances justifying the granting of permission, which made the exercise of such discretion rare.
The findings of the High Court decision
District Judge Griffith granted the Defendant's application and gave permission for all classes of document to be used in contribution proceedings against the NHS Trust.
It was found that usage of the documents had already occurred, which engaged a "more stringent" test to be applied to retrospective applications.
However, when applying that test, District Judge Griffith considered whether permission would have been granted had the application been a prospective one (ECU Group Plc v HSBC Bank Plc [2018] EHC 3045 (Comm)). He found that permission would have been granted in that situation "which was an important consideration" albeit not ultimately either necessary or determinative of the application.
In granting the Application District Judge Griffith considered the question of proportionality on debarring use of the documents and had to balance the likely effect on the Claimant as against the detriment to the Defendant. Mr Wilson had not given any direct evidence in opposition to the Application and the Defendant had settled his claim (inclusive of costs and damages) for a sum greater than five hundred thousand pounds. The effect on the Defendant would therefore be significant were they to be denied usage of the documents, which was deemed to constitute "a disproportionate response". The test was therefore met in respect of the Defendant being granted permission to rely on the medical records and witness statement.
As to the pleadings and medico-legal evidence, it was found that these documents would have likely been referred to in the CCMC hearing and had therefore been referred to in a public hearing. That was sufficient to satisfy the test at CPR 31.22(1)(a), which was another exception to the general rule that documents could not be used for a separate purpose. It was highlighted that any medical evidence commissioned by the Defendant could also be relied on in contribution proceedings since it had to be right that a party did not require permission to rely on its own evidence.
Comment
The judgment offers helpful guidance to practitioners and insurers alike who may at some point in the future seek to rely on disclosed documents for another purpose, such as contribution proceedings, than the litigation in which such evidence was originally disclosed.
It was noteworthy that the commentary to the Civil Procedure Rules governing the application contained very little guidance for practitioners operating in the insurance sector, with much of the higher court jurisprudence relating to banking or maritime law, and so this is a decision which should be welcomed by those operating in insurance law (particularly those engaged in contribution proceedings).
This judgment provides an illustrative example of the test to be applied to applications seeking collateral disclosure, whether prospective or retrospective, for the use of documents in related or separate proceedings. Anybody involved in collateral disclosure applications would be well advised to consider the exceptions for use of classes of documents referred to in public hearings and also the more stringent test applying to retrospective applications.
The decision acts as a useful tool for practitioners instructed to bring contribution proceedings against third parties following the compromise of one set of proceedings (when such settlement is clearly justified and proportionate as here) and also provides guidance should the application transpire to be one of a retrospective nature, particularly when that is brought about by the occurrence of a completely foreseeable event such as review of documents, which gives rise to the notion of a contribution claim in the first place.
Finally, the judgment should act as a deterrent to those seeking to deprive a party use of documents for collateral purposes when there is a lack of prejudice to be demonstrated by that use, particularly when that requirement has arisen as the result of a compromise to the objecting party's benefit.
Further reading: Mr Kevin Wilson –v- Ryan Jones and Liverpool Victoria Insurance Company (6 July 2023) High Court of Justice Kings Bench Division of the Birmingham District Registry
Daniel King is a Barrister within DWF Chambers and specialises in insurance law. He can be instructed by emailing Chambers@DWF.Law or calling his clerks on +44 333 320 2220.
