The High Court has ordered Ben McArdle Limited to swear an affidavit addressing whether it ever had a dated and endorsed CNA insurance cover slip, and, if it no longer has it, when it parted with the document and what became of it. The order was made during a discovery dispute in a professional indemnity insurance case; it does not decide who was responsible for the insurance gap or the conflicting documents, which remain issues for trial.
The plaintiffs had instructed Lagan Construction Group Holdings Limited, Lagan Construction Group Limited, Lagan Construction Limited and Charles Brand to arrange professional indemnity insurance, including two excess layers. The judgment says the first named defendant used Ben McArdle Limited, a broker licensed to place cover on the Lloyd’s market, for those layers. One layer was placed, but the second was not placed with CNA until 18 April 2013. That cover was not retrospective, leaving no cover under it for claims notified before that date.
Two versions of a CNA cover slip were in issue. One, dated 18 April 2013 and endorsed to exclude claims or notifications made before that date, was held by CNA. The other, sent to the plaintiffs’ replacement broker, Lockton Companies LLP, was undated and lacked the endorsement. How the two versions came about, and who was responsible, were contested questions for the trial.
The first named defendant sought an order requiring Ben McArdle to account by affidavit for the dated, endorsed slip. Justice Costello said the application did not specify the document in the notice of motion as the relevant rule required. However, the grounding affidavit made clear what was sought, and Ben McArdle had not claimed surprise or prejudice. The judge ordered the affidavit, finding the evidence supported the belief that the document had been in the broker’s possession and that the existing discovery evidence did not resolve what happened to it.
The judge refused the first named defendant’s request to extend the time period for the three agreed categories of discovery beyond 17 June 2014. Although the court had jurisdiction to revisit the agreed limits, the proposed extension was not shown to be relevant or necessary. She also rejected a complaint about internal investigation documents, which fell outside the agreed categories.
On privilege, the court directed that any documents withheld on that basis must be listed and described individually, with the basis for each claim stated. The judgment was delivered on 30 June 2017.