Chard v Old Mutual Insure Limited (A66/2017) [2019] ZAKZDHC 23; [2020] 1 All SA 381 (KZD) (30 September 2019)

Chard v Old Mutual Insure Limited (A66/2017) [2019] ZAKZDHC 23; [2020] 1 All SA 381 (KZD) (30 September 2019)

The court found that Old Mutual had not satisfied the requirements for invoking litigation privilege over the expert reports and correspondence. The evidence did not establish that the reports were obtained for the definite purpose of obtaining legal advice in circumstances where litigation was likely or reasonably anticipated. The initial involvement of Old Mutual was cooperative, and litigation was not contemplated until much later. The respondent failed to demonstrate the necessary intention or linkage to legal advice at the relevant time. Accordingly, the applicant was entitled to the disclosure of the documents sought.

Citation
[2019] ZAKZDHC 23
Parties
Applicant: Russel Chard; Respondent: Old Mutual Insure Limited
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
30 September 2019
Case Number
A66/2017
Procedural Posture
Admiralty Application / Application to Compel Expert Report Disclosure Under Rule 35(6)
Outcome
Application granted. Old Mutual is ordered to deliver the specified expert reports and correspondence.
Judges
Lopes
Legal Topics
Litigation Privilege, Disclosure of Documents, Insurance Claims, Expert Evidence
Civil Procedure Admiralty and Maritime Litigation Privilege Disclosure of Documents Insurance Claims Expert Evidence

Case Brief

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Parties

Russel Chard

Applicant

Old Mutual Insure Limited

Respondent

Procedural Posture

Admiralty Application / Application to Compel Expert Report Disclosure Under Rule 35(6)

Legal Issues

  1. 1 Whether Old Mutual is entitled to withhold expert reports and correspondence on the basis of litigation privilege.
  2. 2 Whether the expert reports were obtained for the definite purpose of obtaining legal advice in contemplated litigation.
  3. 3 Whether litigation was reasonably contemplated at the time the reports were commissioned.

Ratio Decidendi

The court found that Old Mutual had not satisfied the requirements for invoking litigation privilege over the expert reports and correspondence. The evidence did not establish that the reports were obtained for the definite purpose of obtaining legal advice in circumstances where litigation was likely or reasonably anticipated. The initial involvement of Old Mutual was cooperative, and litigation was not contemplated until much later. The respondent failed to demonstrate the necessary intention or linkage to legal advice at the relevant time. Accordingly, the applicant was entitled to the disclosure of the documents sought.

Court Disposition

Application granted. Old Mutual is ordered to deliver the specified expert reports and correspondence.

Orders

  • Old Mutual is ordered to deliver the assessment report of the mechanical engineer, Johan Bekker.
  • Old Mutual is ordered to deliver the assessment report of the investigator, Martin Blomeyer.