The case concerned who should pay the legal costs of 426 claimants who successfully sued a medical group for the supply of defective silicone breast implants. The medical group, Transform, which supplied implants manufactured by Poly Implant Prothèse (PIP), was sued by 623 women and had product liability insurance cover for claims with Travelers Insurance.
However, at a late stage in the case, it was discovered that 426 of the women were uninsured either because there was a risk of injury but the implants had not yet ruptured or because injury had occurred outside the period covered by Travelers. The case was further complicated by the fact Transform became insolvent during the trial.
The Court of Appeal used its judicial discretion to make a non-party costs order under s 51 of the Senior Courts Act 1981 against Travelers, making the insurer liable for the uninsured women’s costs. In a ruling this week, however, the Supreme Court has unanimously overturned this decision.
Giving the lead judgment in Travelers Insurance v XYZ [2019] UKSC 48, Lord Briggs said: ‘It would be unsatisfactory if the insurer’s exposure to that liability, ex hypothesi lying outside the confines of the policy, were to depend purely upon the uncontrolled perception of a particular judge about the general justice of the matter, controlled only by a requirement to show exceptionality, in the general sense that the case in which the question has arisen is unusual, measured against the general run of civil litigation.’
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