Travellers Insurance Co. Ltd v XYZ [2018] EWCA Civ 1099



Judge: Thirlwall LJ

Citation: [2018] EWCA Civ 1099

Summary:

When deciding whether or not to make a non-party costs order, the Court has a broad discretion, although it will only do so where the cases is exceptional. Case authorities have not set down any specific criteria. The only test is whether it is just to make the order in the circumstances.

Longer text:

In a case in which certain uninsured claims were nothing to do with the insurer, its involvement in the defence of the claims and their approach to the company’s conduct of them were relevant considerations. The insurer had been in the driving seat of the litigation. The insurer’s desire not to reveal the details of the policy had inevitably affected the approach to the uninsured claims. The cases were well outside the normal run of cases in which parties pursued or defended claims for their own benefit and at their own expense. The fact that the insurer insured other claims did not entitle it to be involved in or influence the conduct of the uninsured claims, both of which it did. But for the insurer’s interest, the company would have disclosed the terms of the policy to the Claimants at an early stage, and the applicants would not have pursued their claims and incurred the costs they sought. It was just to make an order against the insurer for the applicants’ costs up to a particular date.[1] On appeal, the Court, following Deutschebank AG v Sebastian Holdings Inc[2].  held that the only immutable principle was that the discretion in respect of non-party Costs Orders had to be exercised justly.  The authorities relied on by the Appellant insurance company did not lay down a series of conditions that had to be fulfilled before a Costs Order could be made against insurers.  The appeal was dismissed.

[1] Z v Travelers Insurance Co Ltd [2017] EWHC 287 (QB), Thirlwall LJ.

[2] [2016] EWCA Civ 23; [2016] 4 W.L.R. 17.

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