Practice and Procedure


PUBLISHED October 10, 2003

An intervenor was entitled to access the pleadings and written openings in proceedings alleging fraud against insurance brokers in order to consider whether similar allegations of fraud should be made against the brokers in other proceedings relating to similar film finance transactions.Application for disclosure to a non-party ('HIH') of the pleadings and written opening submissions in the proceedings so far as they related to particular allegations of fraud, said to be relevant to other proceedings in which HIH was involved. These proceedings were known as 'Hollywood 4 and 5'. The claimant was the trustee insured under a policy designed to cover the risk that the revenue from various television programmes and films would not be sufficient to meet the sums payable to investors. The defendants were the insurer ('L') and the brokers ('J'). The transactions were initiated and orchestrated by a corporation ('F') which worked closely with J. L's defence included allegations of fraudulent misrepresentation and non-disclosure by J, including allegations of fraud by J and F in similar film financing transactions originated by F and in which J had acted as placing broker. The Hollywood 4 and 5 proceedings settled after five days. HIH was involved in proceedings ('Hollywood 1 to 3'), in which it was the insurer in film financing transactions where J was the broker and F the originator. HIH's case against J in those proceedings alleged negligent breach of duty and/or breach of contract by J but not fraud. Therefore documents in J's possession relating to the fraud allegations would not be disclosable because they would not be relevant to any pleaded issue. HIH intervened in Hollywood 4 and 5 (although the proceedings had settled) in relation to any of the three slates of films comprising Hollywood 1 to 3, seeking disclosure of the written openings and pleadings relating to fraud by J and F, so that HIH could consider whether to make similar allegations of fraud against J in Hollywood 1 to 3. The application was made under CPR 5.4(2)(a) and/or CPR 31.22 and/or CPR 32.13 or the inherent jurisdiction of the court.HELD: (1) The purpose for which HIH required access to the pleadings was an entirely appropriate one. There could be no public policy in withholding access to such documents where there was some basis for their relevance. The only allegations of fraud made in Hollywood 4 and 5 against J in respect of Hollywood 1 to 3 were in respect of Hollywood 3. HIH should be permitted to inspect the pleadings to the extent necessary to follow the allegations of fraud against J and F in respect of Hollywood 1 to 3. (2) The hearing was proceeding at the time of settlement and the written openings had by then been read by the court in order to facilitate the conduct of that hearing. The fact that the parallel oral opening had not covered the whole ambit of those written submissions did not mean that they had not been relied on by the court to inform itself of the totality of the issues for the purposes of the conduct of the hearing so far as it proceeded. The existence of a judgment or other judicial decision was not a pre-requisite to the exercise of the inherent jurisdiction in favour of granting access (Gio Personal Investment Services Ltd v Liverpool and London Steamship P & I Association Ltd (1999) 1 WLR 984 applied). (3) Allegations of fraud in Hollywood 4 and 5 against J in respect of Hollywood 1 and 2 were not pleaded and those allegations might have been excluded as inadmissible had the case not been settled. That being so it would be unfair to J to permit those allegations to be disclosed to a non-party. Therefore, HIH was entitled to access such parts of the written openings as it had applied for except those passages which raised allegations of fraud against J in relation to Hollywood 1 and 2. That limitation did not extend to allegations of fraud against F in relation to Hollywood 1 and 2.Judgment accordingly.

[2003] EWHC 2297 (Comm)