GUTTENBEIL V TOWER INSURANCE LIMITED HC AK CIV-2010-404-5675

GUTTENBEIL V TOWER INSURANCE LIMITED HC AK CIV-2010-404-5675

Court held defendants were entitled to litigation privilege for investigation materials and witness statements from the dates defended (Tower from 16 June 2009; IAG from 17 June 2009) because litigation was reasonably apprehended then; internal working papers of independent agents not in defendants' control need not be discovered; defendants must separately list attachments where not already done and file affidavits confirming listing; there was no waiver under s65(2) or s65(3)(a); plaintiffs' discovery application largely dismissed subject to limited orders and timelines.

Citation
openlaw-1f05021b_3b11_4863_b869_6ef2c40e0389.pdf
Parties
First Plaintiff: Herman Robert Guttenbeil; First Plaintiff: Yvonne Gay Guttenbeil; Second Plaintiff: Sarah Guttenbeil; Second Plaintiff: Brent Guttenbeil; Third Plaintiff: XS Performance Limited; First Defendant: Tower Insurance Limited; Second Defendant: IAG New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 August 2012
Procedural Posture
Civil Insurance Dispute / Interlocutory Discovery Applications
Outcome
Applicants' (plaintiffs') discovery application dismissed except for limited orders; defendants' discovery application largely dismissed and otherwise resolved; further affidavits and a costs declaration ordered.
Legal Topics
Litigation Privilege, Waiver of Privilege, Discovery Obligations, Duty of Utmost Good Faith, Control of Documents, Witness Statements, High Court Rules Discovery Requirements, Section 56 Evidence Act 2006, Section 65 Evidence Act 2006
Insurance Evidence Civil Procedure Contract Litigation Privilege Waiver of Privilege Discovery Obligations Duty of Utmost Good Faith +5 more

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Parties

Herman Robert Guttenbeil

First Plaintiff

Yvonne Gay Guttenbeil

First Plaintiff

Sarah Guttenbeil

Second Plaintiff

Brent Guttenbeil

Second Plaintiff

XS Performance Limited

Third Plaintiff

Tower Insurance Limited

First Defendant

IAG New Zealand Limited

Second Defendant

Procedural Posture

Civil Insurance Dispute / Interlocutory Discovery Applications

Legal Issues

  1. 1 Whether defendants properly listed discoverable documents and attachments
  2. 2 Whether internal documents of defendants' consultants/investigators are within defendants' control
  3. 3 From when litigation privilege (s56 Evidence Act 2006) can be claimed by defendants

Ratio Decidendi

Court held defendants were entitled to litigation privilege for investigation materials and witness statements from the dates defended (Tower from 16 June 2009; IAG from 17 June 2009) because litigation was reasonably apprehended then; internal working papers of independent agents not in defendants' control need not be discovered; defendants must separately list attachments where not already done and file affidavits confirming listing; there was no waiver under s65(2) or s65(3)(a); plaintiffs' discovery application largely dismissed subject to limited orders and timelines.

Court Disposition

Applicants' (plaintiffs') discovery application dismissed except for limited orders; defendants' discovery application largely dismissed and otherwise resolved; further affidavits and a costs declaration ordered.

Orders

  • Plaintiffs to file and serve a supplementary affidavit of documents within 15 working days as to XS Performance Ltd financial records and confirm no further discoverable documents
  • Declaration under s45(5) Legal Services Act 2011 as to costs that would have been payable absent legal aid; parties to file memoranda if unable to agree