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Clinical negligence - Funding, group litigation, insurance, CPR 3.1(2)
 EWHC 3643 (QB)
Thirlwall J - 22 November 2013
In their group action, the claimants were successful in their application for an order compelling the defendant to provide a statement outlining whether they had sufficient insurance to fund the costs of participating in the case.
The claimants sought damages from the defendant for supplying them with defective PIP breast implants. The value of the claims overall was around £13m and there were concerns as to the defendant's ability to meet the potential costs.
The defendant refused to provide the claimants with details of their insurance. The claimants sought an order from the court pursuant to CPR 18.1 and CPR 3.1(2) that the defendant provides a statement as to their financial means of defending claims brought against them and paying the cost of any damages and costs awarded.
The court held that CPR 18.1 did not apply as the issue regarding the defendant's insurance was not a matter in dispute between the parties. CPR 3.1(2) however is a case management rule and had some limited application. The court would not intervene in relation to the defendant's potential inability to pay any damages or costs but their ability to fund the cost of litigation was of concern as it affected case management decisions.
The court could not force the defendant to answer questions in relation to their ability to pay any damages or costs but it could order to them give a statement setting out the financial position with regards funding their case. The application was therefore granted.
Many potential claimants affected by the PIP breast implant scandal have sadly been prevented from pursuing claims due to the defendant's inability to meet the costs of litigation. It is disappointing that defendants cannot be required to answer on account of their ability to pay damages and costs but forcing their hand when it comes to their ability to fund the cost of the case at least provides claimants with a small window of opportunity to assess whether their claim will be financially viable.
Adam Dyl, Anthony Gold Solicitors
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