Brown v. Wilkinson

Brown v. Wilkinson

Documents and communications created before September 2008 are not protected by solicitor-client or litigation privilege on the evidence; alternatively, even if privilege attached, it is waived in the interests of justice because the defendants' failure to preserve physical evidence after clear notice from the plaintiffs' insurer caused significant prejudice, so the defendants must produce the pre-September 2008 privileged materials.

Citation
2012 BCSC 398
Parties
Plaintiffs: Stephen Richard Brown; Catharina Theresia Johanna Goossen; Defendants: Glory Ann Wilkinson; Kenneth George Wilkinson; Third Party: Behr Process Corporation
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
20 March 2012
Procedural Posture
Civil – Property Damage (fire) / Application to Compel Production (in Chambers)
Outcome
Application granted in part: privilege does not attach to documents pre-September 2008 and, if it did, privilege is waived for those documents; plaintiffs awarded costs.
Legal Topics
Solicitor Client Privilege, Litigation Privilege, Preservation of Evidence, Spoliation, Access to Site, Discovery
Source Language
English
Civil Procedure Evidence Privilege Insurance Law Property Damage Spoliation Solicitor Client Privilege Litigation Privilege +3 more

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Parties

Stephen Richard Brown; Catharina Theresia Johanna Goossen

Plaintiffs

Glory Ann Wilkinson; Kenneth George Wilkinson

Defendants

Behr Process Corporation

Third Party

Procedural Posture

Civil – Property Damage (fire) / Application to Compel Production (in Chambers)

Legal Issues

  1. 1 Whether solicitor-client privilege applies to documents in Part 4
  2. 2 Whether litigation privilege applies (reasonable prospect of litigation and dominant purpose)
  3. 3 Whether privilege should be waived in the interests of justice due to loss/removal of physical evidence

Ratio Decidendi

Documents and communications created before September 2008 are not protected by solicitor-client or litigation privilege on the evidence; alternatively, even if privilege attached, it is waived in the interests of justice because the defendants' failure to preserve physical evidence after clear notice from the plaintiffs' insurer caused significant prejudice, so the defendants must produce the pre-September 2008 privileged materials.

Court Disposition

Application granted in part: privilege does not attach to documents pre-September 2008 and, if it did, privilege is waived for those documents; plaintiffs awarded costs.

Orders

  • Defendants must produce documents and communications in Part 4 dated before September 2008 (including documents 4.1–4.6, 4.14, 4.15 and the portion of 4.16 predating September 2008)
  • Privilege for pre-September 2008 documents and communications is waived in the interests of justice