Common interest privilege between insurers and insureds and the Asahi case

Introduction

The recent Federal Court decision of Justice Bromberg in Asahi Holdings (Australia) Pty Limited v Pacific Equity Partners Pty Limited (No 12) [2014] FCA 481 seems to have caused some consternation in the market around the maintenance of legal professional privilege in material exchanged between insureds and insurers. The decision however has less to do with maintaining privilege in circumstances where parties have a common interest and more to do with the means by which privilege can be maintained in circumstances where there is no common interest between the parties.

It is timely to review the established authorities on common interest privilege issues and instructive to view the Asahi decision in the context of these authorities and those dealing with the maintenance of privilege in the absence of a common interest