PI Brief Update

Pre-Action Disclosure as to Impecuniosity: Holt v Allianz Insurance PLC [2023] EWHC 790 (KB) - Sebastian Bates, Temple Garden Chambers

31/05/23. As set out at [1]–[11], there has been a divergence of practice in the County Court on whether prospective defendants in credit hire cases who apply for pre-action disclosure of documentation of prospective claimants’ impecuniosity should succeed. This appeal, from a decision by HHJ Harrison to grant such an application by Allianz Insurance PLC, was heard by Andrew Baker J in order to make it possible for guidance to be given to address this divergence.

Summary

After reviewing the law at [12]–[23], Andrew Baker J explained that ‘the pre-action disclosure sought by Allianz in this case was disclosure HHJ Harrison had power to order if (and only if): (i) Allianz might well be party to any proceedings later issued by the appellant; (ii) impecuniosity might well be an issue in any such proceedings; and (iii) requiring the disclosure to be given before proceedings had been commenced offered a real prospect in principle of disposing fairly of the prospective proceedings, assisting the dispute to be resolved without proceedings, or saving costs’. In addition, he observed at [24]–[25] that it would not be difficult for a potential defendant to persuade a court to permit it to apply for such disclosure if it had a strong case on these points.

Andrew Baker J discussed impecuniosity’s significance in credit hire litigation at [26]–[39], ultimately agreeing with HHJ Harrison that a prospective claimant ‘cannot, by reason that litigation has not yet been commenced, properly refuse to have a position on whether the basis of the claim they have chosen to assert and threaten to litigate is or includes a claim of impecuniosity’.

Andrew Baker J then recited the correspondence that had culminated in the application for pre-action disclosure (at [40]–[53]) and summarised HHJ Harrison’s judgment (at [54]–[59]). He proceeded to conclude that, on the evidence that had been before HHJ Harrison, and notwithstanding ‘the general frequency with which the County Court sees insurers sued directly’, the first requirement set out above had not been satisfied as it had been the applicant’s insured, rather than the applicant itself, that was likely to be party to any proceedings later issued: see [60]–[76].

However, Andrew Baker J accepted (at [77]–[90]) that the second and third requirements set out above had been satisfied.

Conclusion and Comment

On the basis of Andrew Baker J’s reasoning, ‘[p]re-action disclosure should not have been ordered in this case because it was sought only by Allianz’ and so the appeal had to be allowed: see [95]–[96]. Yet, as he acknowledged, this is ‘a technicality’. His judgment implies that, if an insurer is likely to be the defendant in credit hire proceedings, or can ‘caus[e] [an] application [for pre-action disclosure] to be made in the name of their insured’ if the insured is likely to be the defendant, then such an application is likely to succeed in respect of impecuniosity documentation.

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