Disclosure by Defendants of Their Insurance Details: Elephant in the Court-Room for Tort and Other Claims?
18 Torts Law Journal (2010)
30 Pages Posted: 7 Feb 2018
Date Written: October 11, 2010
Insurance covering the potential liability of defendants makes litigation less doubtful for plaintiffs, since it increases the prospect of a judgment being satisfied. In some areas, liability insurance is compulsory. This is so for employers, builders, solicitors, accountants, auditors, doctors and motor vehicle owners and drivers, and recently also for licensed financial advisers. Even when not required by law, liability insurance has been entered into voluntarily in these and other areas where there has been a high level of litigation due to inherent risk of injury or loss. Disclosure of the existence and extent of such insurance can be a critical matter for plaintiffs, their lawyers and any litigation funder, particularly where payment of legal fees is effectively contingent on a successful outcome. Recoverability is likely to be relevant to the question of whether proceedings should be commenced in the first place and to the ongoing issue of whether they should be settled and on what terms. On the other hand, there are the defendant’s rights of privacy and the traditional reluctance of courts to enquire into a defendant’s assets before a plaintiff has proven the defendant liable. Insurers may also have concerns of attracting an increased number of claims. In Australia, arguments by plaintiffs for disclosure of insurance details in the course of case management and discovery have generally been unsuccessful where the insurer is not a party and where the existence of insurance is not relevant to liability. On the other hand, particular statutory rights under the Corporations Act have yielded disclosure in some cases. The rationale for these different approaches is questionable. Given the importance of insurance for large scale class actions, with their relatively fiercely contested early stages of litigation, reform of the law in this area should be considered.
Keywords: Insurance, disclosure, litigation
JEL Classification: K13, K15, K41
Suggested Citation: Suggested Citation