Dredger "Kamal XXVI" & the Barge "Kamal XXIV" (The Owners And/or Demise Charterers of) v "Ariela" (Owners of the Ship) & Ors

Dredger "Kamal XXVI" & the Barge "Kamal XXIV" (The Owners And/or Demise Charterers of) v "Ariela" (Owners of the Ship) & Ors

Disclosure is ordered because the documents sought are relevant to live issues in the section 51 application, including whether Underwriters could and should have discovered Kamal's fraud, which is relevant to the just and equitable exercise of the court's discretion. The fraud exception to privilege applies, as Underwriters and their solicitors were used as mechanisms for Kamal's fraud, and thus privilege is not available to them for these documents.

Parties
Claimants (2006)/defendants (2009): The Owners and/or Demise Charterers of the Dredger 'Kamal XXVI' and the Barge 'Kamal XXIV'; Defendants (2006)/claimants (2009): The Owners of the Ship 'Ariela'; Third Parties/underwriters: Catlin (Five) Limited (on its own behalf and on behalf of the underwriting members of Syndicate 2020 at Lloyds for the 2003 year or account) and Others
Jurisdiction
England and Wales
Judgment Date
14 October 2010
Procedural Posture
Commercial / Interlocutory Application for Disclosure in Support of a Section 51 Senior Courts Act 1981 Costs Order
Outcome
Application for disclosure granted
Legal Topics
Non Party Costs Orders, Legal Professional Privilege, Fraud Exception to Privilege, Disclosure of Documents
Civil Procedure Insurance Law Costs Non Party Costs Orders Legal Professional Privilege Fraud Exception to Privilege Disclosure of Documents

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Parties

The Owners and/or Demise Charterers of the Dredger 'Kamal XXVI' and the Barge 'Kamal XXIV'

Claimants (2006)/defendants (2009)

The Owners of the Ship 'Ariela'

Defendants (2006)/claimants (2009)

Catlin (Five) Limited (on its own behalf and on behalf of the underwriting members of Syndicate 2020 at Lloyds for the 2003 year or account) and Others

Third Parties/underwriters

Procedural Posture

Commercial / Interlocutory Application for Disclosure in Support of a Section 51 Senior Courts Act 1981 Costs Order

Legal Issues

  1. 1 Whether Underwriters should be ordered to disclose documents in support of Ariela's section 51 application for costs against non-party funders
  2. 2 Whether the fraud exception to legal professional privilege applies to Underwriters' documents when Underwriters were used as instruments of Kamal's fraud

Ratio Decidendi

Disclosure is ordered because the documents sought are relevant to live issues in the section 51 application, including whether Underwriters could and should have discovered Kamal's fraud, which is relevant to the just and equitable exercise of the court's discretion. The fraud exception to privilege applies, as Underwriters and their solicitors were used as mechanisms for Kamal's fraud, and thus privilege is not available to them for these documents.

Court Disposition

Application for disclosure granted

Orders

  • Underwriters to disclose documents as specified, subject to redaction for privilege only where not overridden by the fraud exception
  • Parties to draw up a relevant order for disclosure