Litigation Privilege And Insurer-commissioned Expert Reports: A Recent Reaffirmation

Introduction

A recent High Court judgment has reaffirmed the protection afforded by litigation privilege to expert reports commissioned by insurers in the context of pending litigation. The case concerned an application to compel the disclosure of a preliminary report prepared by an agricultural loss adjuster, which had been commissioned by the respondent’s insurer to assess the merits of a counterclaim. The court dismissed the application, holding that the report was protected from disclosure.

The main issue

The applicant sought to compel the respondent to produce a preliminary expert report for inspection. The report had been compiled by a loss adjuster following an inspection of the applicant’s farming premises. The respondent refused disclosure, claiming that the report was privileged as it had been prepared in contemplation of litigation.