Disclosure risks for insurers as a non-party to English arbitration or court proceedings
A P&I Club or H&M claims handler will handle hundreds of files. They may assist their assureds with a wide range of matters, including discrete queries, contract reviews, coverage issues, loss prevention, casualty response and litigation, across various jurisdictions, including English law arbitration and court proceedings. Whilst invariably some of these situations will have a legal element (or legal implications), this does not automatically protect correspondence or documents produced by the claims handler from disclosure.
In this article, we investigate the circumstances in which correspondence and documents produced by insurers’ claims handlers could be disclosable in English arbitration or court proceedings involving their assured.
The position may obviously differ in other jurisdictions and this briefing addresses the English law position only.
An insurer will not normally be a party to a claim brought by or against its assured. Even where the insurer has taken control and conduct of the proceedings, the claim will usually remain in the assured’s name, unless, for example, the insurer has provided security to a third party in its own name, has a statutory right to be sued directly, or has been assigned the claim.
In those circumstances, there is no automatic disclosure obligation on the insurer in English proceedings. However, the documents produced by the insurer may nevertheless be disclosable if these documents are not privileged and:
- the assured has possession of, or the right to obtain, these documents from their insurer, and the assured may be ordered to disclose them or to exercise best endeavours to obtain them by an arbitration tribunal or court;
- in court proceedings – the court orders the assured or insurer to disclose these documents (CPR 31.17) (discussed further below); or
- in arbitration proceedings – if a successful application is made to the court for third party disclosure in support of arbitration using section 43 (witness summons) of the Arbitration Act 1996 (discussed further below).
Remember: A “document” is defined very broadly as “anything in which information of any description is recorded” (CPR Part 31.4) and includes e-mail correspondence, Microsoft Teams chats, WhatsApp messages, videos, photographs, audio recordings, meeting minutes and so forth.
Are the correspondence/documents privileged?
There are several different types of privilege; however, the most relevant privilege is likely to be Legal Professional Privilege (“LPP“). There are two types of LPP:
- Legal Advice Privilege (“LAP“) which covers confidential communications between a client and their lawyer which are for the dominant purpose of giving or receiving legal advice.
- Litigation Privilege (“LP“) which covers communications which are for the dominant purpose of pending, reasonably contemplated, or existing litigation (i.e., obtaining information, evidence, or advice for use in pending or contemplated litigation). It is not limited to “legal advice” — it also covers communications with third parties for the purpose of gathering evidence.
For more information on LPP and other types of privilege, see HFW’s Privilege Guide.
Therefore, whether LPP applies will largely depend upon who made the document and the purpose for which that document was made. For example:
- If the document was sent to the assured and was prepared by a claims handler qualified to practise law (in England or in any other jurisdiction, see R. (on the application of Prudential Plc) v Special Commissioner of Income Tax [2013] UKSC 1), and the other criteria for LAP or LP have been satisfied, then LPP will apply to that document. For example, where a legally qualified claims handler provides advice to a Member on an off-hire claim, this will be covered by LAP or LP.
- If the document was sent to the assured and was prepared by a claims handler that is not qualified to practise law in any jurisdiction, it is unlikely that LAP will apply. However, LP may still apply if the claims handler is performing litigation related services and if the “dominant purpose” test is satisfied (and particularly if that claims handler is being supervised by a “qualified lawyer”) (see R. (on the application of Prudential Plc) v Special Commissioner of Income Tax). This will apply, for example, where a non-legally qualified claims handler is communicating with Members to gather documents for experts/lawyers for an actual or anticipated claim or is advising on a claim themselves. The court has not commented upon whether, in this context, the supervising lawyer needs to be qualified to practise English law, however given the court’s approach in R. (on the application of Prudential Plc) v Special Commissioner of Income Tax, it is thought that this will include lawyers qualified in any jurisdiction.
- If the document was created for internal purposes only, it will depend on who created the document and what the purpose of the internal communication is as to whether this is covered by LPP:
- Litigation: If the document was created for the dominant purpose of being used in or in connection with the litigation, then LP will likely apply regardless of whether the claims handler is qualified to practise law or not (provided they are supervised by a qualified lawyer).
- Legal advice: If the document was created for the purpose of seeking or receiving legal advice, and LP does not apply, this will only be covered by LAP if the document was created by a claims handler qualified to practise law and the dominant purpose of the document was to seek and receive legal advice. Claims handlers should exercise caution in sharing these documents internally. If these documents are shared internally but beyond the “client group” then LAP will not apply. For more information on the scope of the “client group”, see HFW’s Privilege Guide and HFW’s Update following Aabar Holdings SARL anors v Glencore PLC anors [2026] EWHC 877 (Comm).
- Internal reporting: There is some doubt as to whether internal reports on the merits of the case for reporting purposes or internal discussions concerning renewals would fall within the scope of LPP. Given that the dominant purpose of both types of document are likely to be for insurers’ internal purposes, it may be difficult to argue that these were produced for the “dominant purpose” of conducting litigation and/or receiving or seeking legal advice. Unless, perhaps, the “dominant purpose” is to share the legal advice received for the purpose of assessing the merits of the case – in which case LPP may still apply.
If a document is protected by LPP (LAP or LP), then there will be no obligation on the insurer (or the assured) to disclose that document. If, however, no such privilege applies then the insurer and/or the assured may be under a duty to disclose this document if the assured has possession or the right to obtain these documents from their insurer (or if the court orders the insurer to disclose these documents).
Does the assured have the right to obtain these documents from the insurer?
In the Admiralty Court, disclosure is governed by CPR 31. However, for most cases in the Business and Property Courts (with some exceptions), PD 57AD governs the disclosure regime.
Disclosure in LMAA arbitrations is on a similar approach. See LMAA Terms 2021, Second Schedule:
“9……Parties will not generally be required to provide broader disclosure than is required by the courts. Generally, a party will only be required to disclose the documents on which it relies or which adversely affect its own case, as well as documents which either support or affect the other party’s case”
In both arbitration and court proceedings, a party’s duty of disclosure is limited to documents which are, or have been, in that party’s “control”.
If the assured is already in possession of the documents, then the documents are in their “control” and therefore, unless LPP applies, these documents are disclosable.
However, if the assured is not already in possession of the documents, they may still be in “control” of the documents if they have the right to obtain documents from their insurer. This is the case even where the insurer is not a party to the proceedings (CPR r. 31.8(2)(b)-(c)).
The key question is whether the assured has a right to the documents produced or held by the insurer:
- If the assured is not entitled to access these documents, then they will not be deemed to be within their “control” for the purpose of disclosure.
- If, however, the assured is entitled to access these documents from their insurer, the court may order the assured to ask their insurer to produce these documents for disclosure in the proceedings (CPR r. 31.12A, see also CPR PD 57AD, para 18.5).
An assured’s entitlement to documents will largely depend on the terms of the insurance policy in place. Insurers may, therefore, wish to consider implementing a policy that outlines which documents will (and will not) be provided to their assureds upon request.
In court proceedings, can the court compel the insurer to disclose these documents as a non-party?
Even if the insurer is not a party to the proceedings, the court has the discretion (in court proceedings) to compel the insurer to produce disclosure in the proceedings if a party makes an application to the court (see CPR r. 31.17 and s. 34 of the Senior Courts Act 1981).
In addition (or in the alternative), a party could also issue a witness summons (CPR r. 34.2) on a non-party to the proceedings requiring them to produce documents to the court. This has a similar effect to a non-party disclosure order.
The court’s power is discretionary and will only (potentially) be exercised if:
- the documents are likely to support the applicant’s case (or adversely affect the case of one of the other parties to the proceedings);
- disclosure is necessary in order to fairly dispose of the claim, or to save costs; and
- the documents (or classes of documents) exist and are sufficiently specified in the application (arising from Tinkler v Stobart Group Ltd [2021] EWHC 3035 (Ch)).
Previously, the court has exercised its discretionary powers to order non-party disclosure against professional advisers. For example:
- Auditors have been required to disclose audit files and certain underlying documents (Destiny Investments (1993) Ltd and another v TH Holdings Ltd (formerly Tonstate (Hotels) Ltd) and another [2016] EWHC 507 (Ch)). However, importantly, as these audit files belonged to one of the parties to the proceedings, none of the documents disclosed were considered “confidential” (albeit, the confidential status of the documents will not in and of itself defeat an application for non-party disclosure).
- Liquidators were required to disclose accountants’ reports that had previously been shown to a party to the proceedings as LPP did not apply (Tchenguiz and another v Serious Fraud Office and others [2013] EWHC 2297 (QB)).
Ultimately, however, a non-party disclosure order is the exception rather than the rule (see Frankson v Home Office [2003] EWCA Civ 655). Further and in any event, even if the court orders that the insurer provides disclosure as a non-party, the insurer will not be required to disclose any documents covered by LPP.
In addition, the new CPR 31.12A (which supplements CPR 31.17) gives the court the power to:
“request any person to produce for disclosure and inspection any document which may support the case or adversely affect the case of any party to the proceedings.”
While the court can require a party to request documents, and the new rule does not include a necessity threshold as contained in CPR 31.17, it does not compel the third party to disclose documents.
In arbitration proceedings, can the tribunal compel the insurer to disclose these documents as a non-party?
Arbitrators do not have the power to order disclosure against a non-party to an arbitration such as an insurer. They could however order the assured to exercise best endeavours to obtain the documents and disclose them if they have a right to possession (see earlier discussion); potentially drawing adverse inferences if not provided.
The assured’s opponent could make an application to court for third party disclosure in support of arbitration using section 43 (witness summons) of the Arbitration Act 1996. However, this is challenging, as requests need to be precise and justified by necessity for fair disposal of the arbitration (see, for example, VXJ v FY & Ors [2025] EWHC 2394 (Comm)).
What guidance is available on supervising non-legally qualified claims handlers?
It is suggested that the meaning of “supervision” should be drawn from the regulatory rules.
If that is correct, reference is made to the Legal Services Act 2007 and the Court of Appeal decision in Mazur [2026] EWCA Civ 369 in relation to the Act where it was said that an unauthorised person (i.e. a non-qualified claims handler) can conduct litigation under the supervision of an authorised person (i.e. a qualified solicitor) “provided the authorised individual puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person”.
The Court of Appeal went on to say that the level of supervision will depend on the task delegated to the unauthorised person. In some circumstances the unauthorised person should seek approval from the authorised person before carrying out a task but, in other routine circumstances “a lower level of control and supervision would be required“. For routine tasks “it may be sufficient for the authorised individual to conduct regular meetings with the unauthorised person and to sample their work“.
The SRA has also published extensive guidance as to what will amount to “effective supervision” SRA | Effective supervision | Solicitors Regulation Authority, (which has been updated following the Court of Appeal’s decision in Mazur).
Insurers should ensure they have policies and procedures addressing supervision and that compliance with the same is verified.
Points for insurers to consider
It is important that insurers, and their claims handlers, bear in mind the limits of LPP and the scope of their assureds’ (and the insurers’) disclosure obligations in court and arbitration proceedings when creating and circulating documents. In particular:
- The insurer may wish to consider implementing a policy outlining which documents (if any) that their assureds are entitled to.
- Where LP is unlikely to apply (i.e. where the document is not produced for the dominant purpose of actual or contemplated litigation), the insurer may wish to consider having a qualified lawyer handle the communications/file to maximise the chances of LAP applying (albeit, this is still subject to the “dominant purpose” test being satisfied).
- Legal advice from external or internal lawyers should not be widely shared within the insurer to ensure that LPP is preserved. Ideally, all such documents would be marked as “subject to legal professional privilege” and be copied to, or circulated by, a lawyer qualified in England and Wales or elsewhere.
- Insurers should consider carefully how their claims handlers create internal documents. For example, keeping legal assessments of the merits in a standalone privileged document rather than embedding them in broader internal reports that serve multiple purposes (renewals, reserving, board reporting). In this way, even if the broader report is disclosable, the legal analysis remains protected.
- There are some doubts as to whether reports prepared by non-legally qualified claims handlers to the insurers’ board or to other claims handlers will be covered by LPP. However, documents prepared by qualified lawyers advising the board will likely be covered by LAP if the dominant purpose is to give legal advice.
- Insurers should have in place procedures and policies for the supervision of non-legally qualified claims handlers by qualified lawyers and for verification of the same.
- Insurers should consider providing regular training for claims handlers on privilege awareness, covering matters such as company procedures, the different types of privilege, how to label documents, when to involve a qualified lawyer, and the risks of sharing documents beyond the client group.
- Be aware that under the new CPR 31.12A, the court may require your assured to ask you to provide documents.
If you require guidance on any of the issues addressed in this briefing, or would like to discuss HFW’s work in this area, please do not hesitate to contact the authors.
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