Hiscox Underwriting Ltd & Anor v Dickson Manchester & Co Ltd & Anor

MR JUSTICE COOKE: This is an application for an order that the defendants, to whom I shall refer as DM, give access to the claimants, to whom I shall refer as Hiscox, to various documents in their possession which they hold by virtue of being underwriting agents under a binding authority agreement.

The documents sought are as follows:

Hiscox seeks an order that DM provide access to these documents for the purposes of inspection, photographing, taking copies and taking extracts within 72 hours during normal business hours and, having permitted Hiscox to have access, to allow access to continue within normal business hours until all the documents had been inspected, photographed or copied.

Clause 6 of the binding authority agreement provides for the issue of certificates, wordings, documents, schedules and renewal notices by DM, and clauses 14 and 15 provide as follows:

DM resist access for inspection of certain documents within the categories I have mentioned. The point was expressed in a letter of 26 February 2004 in answer to Hiscox's notice of arbitration in which they sought the agreement of DM to an arbitrator nominated by them in accordance with the arbitration clause, which was clause 18 of the binding authority agreement. That clause required:

In the letter of 26 February from the solicitors acting for DM the following appeared:

As explained in DM's skeleton argument, DM maintained that the claimants are seeking to use the inspection of records clause in the agreement to obtain inspection and copies, not just of documents relating to the business under it and the operation and management of the agreement, but to obtain details of all the respondent's producing brokers, which is confidential information to which DM says that Hiscox is not entitled. DM maintained that Hiscox was not entitled to information as to DM's clients, the producing brokers. It was said that the dealings and relationships with those producing brokers took place independently of any agency relationship between Hiscox and DM, given that any particular risk could be accepted under one of a number of binders held by DM from various insurers and not just under the binder from Hiscox. That information, it was said, had been built up through DM's time and effort over the years and was confidential to DM.

The information concerning producing brokers was therefore not, it was said, information to which Hiscox was entitled under common law since it did not form part of the records or documents created or held by DM as agents for Hiscox pursuant to the binding authority agreement. It was said that the position was not altered by clause 15 of the agreement since the details of producing brokers did not form part of the records relating to the insurances bound under the binding authority agreement.

It was further said that in consequence of matters described in the statement of Mr Patten in paragraph 14, undertakings had been given by Hiscox in October 1999 not to contact DM's clients directly or indirectly through other brokers in order to act in competition with DM. That undertaking had, it was said, been relied on in renewing the agreement thereafter.

The points raised as to the nature of the documents, and in particular the documents relating to producing brokers, as they are described, were not maintained in argument before me because they were incontestably bad. Insofar as risks were written under the binding authority agreement to original insureds, whether through producing brokers or not (and whatever mechanism was employed in relation to the underwriting operation), the papers relating to such risks written under the binding authority agreement were part of the agency business conducted by DM for Hiscox. In accordance with the ordinary rules of agency, quite apart from the express terms of clause 15 of the binding authority agreement, these documents belonged to Hiscox as the principal and Hiscox were entitled to inspect them and photocopy them.

The business is indubitably that of Hiscox and the identity of the "producing" brokers, as revealed in DM's correspondence with them when DM were acting as agents for Hiscox, is something that Hiscox is entitled to know. The point now at issue, however, to which reference was made in the letter of 26 February, was set out in a witness statement of Mr Patten of Elborne Mitchell to which I have just referred. Mr Patten said this at paragraph 14:

He then made reference to events which are in issue in October 1999 but went on to say that correspondence and oral discussion took place between the parties, culminating in a letter from Mr Madden of Hiscox to Mr Manchester of DM, dated 29 October 1999. In referring to that letter he said this:

Hiscox by their counsel, Mr Hofmeyr QC, take issue with this, pointing to evidence to the contrary about the purchase of lists of potential customers in 1999 and the terms of the letter of 29 October 1999 itself, which reads as follows, so far as material:

Attention is drawn to the expression of intention in that letter, to the lack of guarantee, to the words "if possible" and the absence of any indication of any agreement of a binding nature, as well as to the confusion in thinking on the part of DM about competition, to which I shall refer in a moment.

The underlying background can be described in the following way. With effect from 1 January 1997, initially for a calendar year, Hiscox had appointed DM to write a general book of professional indemnity insurance business on behalf of Hiscox, pursuant to terms and conditions set out in the binding authority agreement. That agreement was renewed thereafter and most recently was renewed on 11 March 2003 in respect of the calendar year 2003. An extension was then agreed up until 31 March 2004 to allow for minor amendments to be negotiated.

On 31 December 2003, the entire share capital in each of the respondents' DM companies was purchased by a subsidiary of HCC Insurance Holdings Inc, an insurance conglomerate based in Houston in Texas.

On 5 February 2004, according to the evidence of Mr Ludlow, Hiscox learned that DM proposed to move all or most of the business written by it on behalf of Hiscox under the binding authority agreement to a new binding authority granted by an HCC Group company. A copy of the letter which DM issued to a number of producing brokers confirms an intention that the business currently written on behalf of Hiscox should be underwritten in future by an HCC Group company. That letter, so far as material, reads as follows:

From this it was clear that DM was intending to divert the book of business it had written for Hiscox to an HCC company so that it would in future be written by that HCC company. By a letter of 9 February 2004 Hiscox gave DM 30 days' notice of cancellation, in accordance with clause 19 of the agreement. By a letter of 12 February 2004 Hiscox asked to inspect three categories of documents for each risk written by DM on behalf of Hiscox under the binder, with such inspection to commence on 18 February. The categories of documents sought were expanded on the following day. On a previous audit by Hiscox all such documents had been made available by DM without demur.

The evidence shows that the risks written under the binding authority agreement by DM are approaching renewal on a daily basis and that in order to offer renewal to its insureds, whether directly or via placing brokers, access to the records maintained by DM relating to the insurances bound under the binding authority agreement is a matter of critical importance. It is also a matter of urgency. If Hiscox is not able to offer renewal to its insureds it stands to lose an annual book of business which is worth approximately £6.5 million at a rate of about £500,000 net premium income per month, or approximately £25,000 per day.

The evidence also establishes beyond any doubt that when the renewal date is post and a risk has been lost by virtue of being placed with other insurers it is extremely difficult, costly and time-consuming to win that business back. There is, therefore, a considerable interest on the part of Hiscox in not losing the business and being able to quote for it on renewal. The evidence also is clear, as might well be expected from anyone with knowledge of the position, that it is important that access be had to the broker representing the assured on a professional indemnity book of business in order to give the appropriate quotation.

Following the request for inspection, DM declined access, initially on grounds of inconvenience. On 17 February, however, they agreed to permit a restricted form of access to the records. They were unwilling to permit access to records which contained information relating to the producing brokers of the business to DM under the binding authority agreement. Exchanges followed over the next few days, but it was then said by DM that time was needed to make available the documents which they were prepared to allow Hiscox to see, because of the need to separate those from the documents that Hiscox were not to be shown (because they identified the producing brokers concerned).

DM points to the terms of a letter of 27 February written by Holmans, who are Lloyds brokers, to some of the brokers who had produced business to DM to be underwritten under the binding authority agreement. The letter of 27 February reads, so far as relevant:

It is clear from the material emanating from DM that they wished to prevent Hiscox knowing the identity of the brokers who produced business to them under the binding authority agreement and that Hiscox are keen to obtain the names of the brokers in order to offer renewal of the risks written under the binder. Both DM, on behalf of HCC, and Hiscox wish to have the book of business previously written under the binder so far as that can be achieved.

HCC and DM, however, wished to secure an advantage in obtaining the business by preventing Hiscox from approaching the brokers concerned, whilst Hiscox maintain that it is their business and that they should be given all the relevant documents so that they can make such an approach as risks come up for renewal. There is, it appears to me, a confusion of thought on DM's part because, as Mr Patten puts it, Hiscox should not be permitted to act in competition with DM after termination of the binding authority.

It is clear on any view of the matter that the business previously written under the binder is Hiscox's business and that DM were only agents. Once that agency terminated DM were free to act as brokers, placing business with Hiscox, or indeed with other insurers, but Hiscox would not be acting in competition with DM at all. The only competition there might be would be if HCC sought the same business on renewal and DM acted for HCC in seeking to get it for DM.

The hearsay evidence from DM, in paragraph 15 of Mr Patten's witness statement, is that Hiscox agreed not to act in competition with DM in 1999 or to contact DM's clients directly or through another broker. This occurred at a time when the binding authority was still in existence. Once the binding authority was terminated, what objection could DM legitimately have against Hiscox contacting its own assureds directly or through their brokers? In fact, the objection is now raised not to the making of direct contact, nor to contact through brokers generally, but to contact through those particular brokers who brought the business to Hiscox via DM.

The weakness of this argument is self-evident, particularly in circumstances where DM will not, of course, approach the assured or their brokers on behalf of Hiscox when the binding authority agreement has ended and is seeking to prevent access by Hiscox to those brokers and through those brokers to the clients.

There is a preliminary question of jurisdiction which I have to determine. It is said by DM that the court has no jurisdiction to make an order of the kind sought here, whether on an interim or a permanent basis. So far as permanent injunctions are concerned, section 48 of the 1996 Arbitration Act provides that an arbitration tribunal has the same powers as the court to order a party to do or refrain from doing anything. Section 1.1 of the 1996 Arbitration Act sets out three principles as applicable to part 1 of the Act. They are as follows:

Section 44.1 of the Act expressly gives the court power to grant interim injunctions, however, in the following terms:

And there then follows a list of various matters, including at subparagraph (c):

Subparagraph (e):

Section 44 subsections (3) to (6) circumscribe the powers of the court by reference to the question of urgency in relation to the need for a remedy. Section 44.4 deals with the position where the case is not one of urgency and provides that the court shall act only on the application of a party to the arbitral proceedings upon notice to the other parties and to the tribunal, if the application is made with the permission of the tribunal or the agreement in writing of the other parties. If this case is not, therefore, one of urgency, there is no basis for an interim injunction under this section since neither of the provisos to subsection 4 are satisfied.

Subsection 5 of section 44 provides that in any case the court shall act only if or to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively. This therefore provides that the court's power to act shall only be exercised where the arbitral tribunal's power is ineffective. This was certainly the case as of yesterday when there was no agreed arbitrator between the parties, but I have just been informed that an arbitrator has been appointed by the parties as of today. He has however no familiarity whatsoever with matters so far as is not in a position to make any immediate order.

Section 44 subsection 6 provides for the court to impose a limit on any injunction given, giving the arbitrator later appointed the power to reconsider the matter or, in the current circumstances, the arbitrator now appointed to take over the matter should the court think it appropriate to make an order in the present case. It would then be up to the arbitrator to reconsider it and decide whether or not the order should continue.

The dispute between the parties on jurisdiction essentially turned upon section 44 subsection 3, which reads:

The issue between the parties is whether the powers given under section 44.2 (e) were limited to the matters set out in section 44.3. The Departmental Advisory Committee report on arbitration law states that there is a limitation so far as section 44.2 (e) is concerned by reference to section 44 subsection 3. But the terms of the Act cannot, in my judgment, be construed in that limited way. Section 44.2 (e) is entirely general but is cut down by section 44 subsection 4 to cases of urgency and by subsection 5 to cases where the tribunal cannot give the appropriate remedy at the time in question.

By contrast to those subsections, wherein the wording appears "shall act only", the words in section 44 subsection 3 are permissive and not prohibitive. The words used are "the court may" rather than "the court shall" or "the court shall act only" in given circumstances.

In a situation where there has been a delay in the appointment of an arbitrator, albeit one within the party's rights, and where the inspection of documents has been the subject of requests since 12 February, it appears to me that the situation may require the court's intervention. When regard is had to section 44 it can be seen that subsection 2 (b) provides for the preservation of evidence so that section 44.2 (c) and (e) must be given some wider meaning beyond that. Nor is there any suggestion in the wording that there is a limit to freezing injunctions or search and seize orders of the Mareva or Anton Piller variety.

I conclude, therefore, that the court does have a jurisdiction which can be exercised where the tribunal cannot effectively act as here, and that in the circumstances which appear clearly from the correspondence before me, DM has in the past delayed agreeing an arbitrator for some nine days.

The terms of section 1 of the Act have also to be borne in mind. Section 1 (c) provides that the court "should not intervene" except as provided by part 1 of the Act. The words "should not" are not the same as "shall not", as both parties accepted, and indeed as is pointed out in a passage in Mustill and Boyd's Companion Volume, at page 28, and in the comments of Mr Justice Thomas in Vale do Rio v Shanghai Bao Steel [2000] 2 Lloyds Rep 1 at page 11 and paragraph 52.

It is also agreed, however, that the court's general approach should be a minimalist one of intervening only within the framework of the Act or in order to support the basic process of arbitration. As I have already found that an interim injunction prior to the appointment of an arbitrator or in circumstances where an arbitrator cannot effectively act is permissible in an urgent situation, section 1 (c) provides no bar here if the matter otherwise requires an order to be made as a matter of urgency and such an injunction would be supportive of the arbitration process.

Additionally, it is accepted by both parties that the courts have a residual jurisdiction outside the framework of the Arbitration Act under section 37 of the Supreme Court Act. Examples of this appear in The Epsilon v Rosa [2003] 2 Lloyds Rep 509 (CA) at page 517 and paragraph 40, and in XL Insurance v Owens Corning [2000] 2 Lloyds Rep page 500. In addition, the court has inherent jurisdiction, particularly in the light of the requirements for fairness and justice set out in the principles of section 1 of the Arbitration Act itself. It is, nonetheless, plainly only in exceptional cases that the court would be justified in acting under such a jurisdiction if the matter does not readily fall within the terms of section 44 of the Arbitration Act.

Furthermore, the following point needs to be emphasised. An interim injunction will not readily be granted if the effect of granting that injunction is effectively to decide the matter at issue which is to be determined by the arbitrator and if the effect of so doing would be to usurp the function of the arbitrator to which the parties have agreed. This is a point of the utmost importance but it will, nonetheless, yield to the requirements of justice if urgency and fairness require it in order that justice can be administered.

I turn then to apply these principles to the facts before me and summarise what is shown by the evidence. (i) Hiscox have sought access to their own documents since 12 February, now for some three weeks.

(ii) They still have not had any access, even to the documents over which no objection is raised.

(iii) Renewal of risks occurs with regularity and the business is worth some £500,000 per month.

(iv) The need for access to the primary brokers to offer renewal is critical.

(v) Hiscox is prevented from access to those brokers by lack of access to the agency documents in the possession of DM.

(vi) DM has such access and is in a position to offer terms on behalf of a competitor of Hiscox, as it has said it will do, even if it has not already done so.

(vii) The 30 days' notice bringing the binding authority agreement to an end expires on 10 March, ie in less than a week.

(viii) Despite being asked to agree an arbitrator on 24 and 25 February, after some nine days DM had not done so and only under pressure from myself have agreed to an arbitrator overnight. Previously they had indicated they would take as much of their 14 day entitlement to agree an arbitrator as they wished.

(ix) Although there is a dispute over access to documents, which qualifies for arbitration by virtue of the argument raised about events in October 1999, those arguments appear to the court to be weak.

(x) Unless there is a speedy arbitration within a short period of time there will be an increasing number of risks falling due for renewal where Hiscox will be unable to make an effective bid for the business because of lack of access to the brokers acting for the insured.

(xi) The more time that passes and the more risks for which Hiscox cannot effectively bid, the more obvious is becomes that damages would simply not be an adequate remedy.

(xii) There are obvious difficulties in showing what business would or would not have been obtained if access to the brokers is not given by means of access to the documents enabling a quote to be given for renewal.

Looking at the question of balance of convenience it is clear to me that it favours the making of an order allowing both DM and Hiscox access to the documents and to the brokers so that Hiscox can quote and, in the absence of any injunction preventing them from doing so, DM will also be able to quote on behalf of HCC if that is what they feel free to do. The potential loss by Hiscox of its business to HCC is such that damages are an inadequate remedy. The difficulty in getting such business back once lost is obvious and established on evidence before me.

All that DM loses, however, by virtue of any injunction is the supposed confidentiality of its relationship to the brokers who produce business to it in circumstances where the correspondence shows that the identity of those brokers was shown in agency correspondence for its principal, Hiscox, and the business was Hiscox's business. Without finally determining the arguments put up by DM, the fact that their position is weak in seeking to maintain confidentiality from Hiscox on Hiscox's business and the fact that they granted prior access to all these records, present strong factors against them when looking at the balance of convenience.

Unless, therefore, the matter is resolved before an agreed tribunal in the imminent future, the requirement for an urgent injunction in the absence of resolution of the problems is met and the matter falls within the appropriate narrow criteria of section 44, notwithstanding the potential usurpation of the arbitrator's decision-making process.

I intimated to the parties last night that there was an opportunity to take instructions for DM as to the speed with which they could undertake to bring matters before an agreed arbitrator so that the court might not see the need for urgent intervention by way of interim injunction, which could have the effect of pre-empting an arbitral decision on the limited dispute between the parties. That resulted in Mr Flaux QC, on behalf of DM, telling me this afternoon that Mr Hamilton QC had been agreed by the parties as the arbitrator and that three days were reserved for a hearing on 24, 25 and 26 March, which appear to be dates convenient to all concerned and at as early a stage as appeared practical.

Mr Hofmeyr QC required, however, that further undertakings be given if he was not to proceed with his application for an order. He wished to have certainty in the shape of undertakings as to the procedural steps to be taken to ensure that the arbitration would truly take place on 24, 25 and 26 March. He also wanted to be secure in relation to the question of renewals falling due before any award was published by the arbitrator.

Essentially, he was looking for an undertaking that either the business falling due for renewal, until such time as the award was published, would be renewed with Hiscox or that his clients would have access to renewal records in order to make a bid for it. He pointed out that if DM had co-operated in relation to arbitration there was the possibility or likelihood that a speedy arbitration would have taken place by about now and an award would be at most only a few days away.

It seems to me, looking at the position as it now stands, that if all goes well an arbitration award might be expected by about the end of this month. That is some 26 days away, and at the rate of £500,000 a month it is a period of time which is worth a considerable amount of money.

In those circumstances the just and proper solution appears to me to make a very limited order providing for access to the records of Hiscox currently held by DM and, subject to the parties addressing me on the exact form of words, the order that I propose to make is that access be given to the records of the insurances which have fallen due but which have not yet been renewed and to the insurances which will fall due for renewal up to the date of the award issued by Mr Hamilton. In that way the position of Hiscox is secured, pending the decision of the arbitrator as to what the ultimate rights and wrongs of this situation are, and they can bid for the business in the manner that they would wish to.

The arbitrator will, of course, in accordance with the terms of section 44.6, have the power to take such steps as he feels appropriate in relation to the order that I have made if he should consider that it is something that he should vary.