The Court of Appeal has held that a first instance judge erred in refusing Extended Disclosure of a particular category of documents potentially relevant to the construction of a professional indemnity policy: AmTrust Specialty Ltd v Endurance Worldwide Insurance Ltd [2025] EWCA Civ 755.
Allowing the appeal, the Court of Appeal ordered the disclosure of correspondence between an insurer and two insured firms of solicitors prior to the inception of their professional indemnity policies. The decision provides guidance as to the court's approach to determining whether it would be reasonable and proportionate to order Extended Disclosure, having regard to the overriding objective. Crucially, the Court of Appeal confirmed that there is no threshold test of relevance before Extended Disclosure can be ordered. Consequently, the Court of Appeal held that the first instance judge had improperly decided on an issue that rightly fell to be determined by the trial judge (ie that the placement correspondence was not relevant to construction of the policy). The judge was also criticised for failing to consider the factors listed in PD57AD in considering whether Extended Disclosure was necessary.
In considering the specific Extended Disclosure sought in this case, the Court of Appeal rejected the argument that the pre-contractual correspondence between the insurer and its insureds could not be relevant to the construction of a policy, noting that the fact that the relevant policy clauses might be in standard form and modelled on minimum terms was not determinative of the proper construction of those clauses. The trial judge will need to consider the construction of the particular policies and whether, in the circumstances of this case, the terms cover the claim.
For more information see this post on our Insurance Notes blog.
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