In <span class="news-text_italic-underline">AmTrust Specialty Ltd v Endurance Worldwide Insurance Ltd (t/a Sompo International) [2025] EWCA Civ 755</span>, the Court of Appeal overturned a case management decision that denied Extended Disclosure under Practice Direction (PD) 57AD, ruling that the relevant documents should be disclosed. The case involved a failed litigation funding scheme, with AmTrust, the after-the-event (“<span class="news-text_medium">ATE</span>”) insurers, pursuing part 20 proceedings against the professional indemnity (“<span class="news-text_medium">PI</span>”) insurers of the scheme solicitors under the <span class="news-text_italic-underline">Third Parties (Rights against Insurers) Act 2010</span>.
The PI insurers denied liability and the policies incorporated the SRA Minimum Terms, with wording stating that pre-contract information, including written proposals, was part of the insurance contract. AmTrust sought disclosure of pre-contract correspondence, but the judge refused, doubting its relevance to the construction of the policies.
Asplin LJ, delivering the lead judgment, concluded that the judge had erred by applying the wrong test, overemphasising the likelihood of relevance. The court clarified that Extended Disclosure involves multiple factors, including identifying key issues in dispute that need to be assessed through contemporaneous documents.
The overriding objective, as stated in PD 57AD, must be considered to ensure fair proceedings. There is no minimum relevance threshold for ordering Extended Disclosure; the likelihood of documents having probative value is just one factor among others. In some cases, documents that may seem unlikely to affect the trial should still be disclosed to avoid prejudging the issues.
The judge had pre-empted the trial judge’s decision and restricted AmTrust’s argument. The Court referenced <span class="news-text_italic-underline">McParland & Partners Ltd v Whitehead [2020] EWHC 298</span>, noting that the question is not about definitively determining relevance, but whether there is documentation that could potentially be relevant. Additionally, since the PI insurers had access to the documents, fairness required that AmTrust, as statutory assignee, should also be granted access.
