Adverse costs insurance policies need not be produced in their entirety where the insured is the law firm and not the plaintiffs. To require disclosure would require a breach of the solicitor-client privilege of other clients covered under the policy.
Date Heard: September 25, 2017 | Full Decision [PDF]
On the morning of the first day of trial, the defendants brought a motion to compel production of an adverse costs insurance policy. The plaintiffs resisted production on the basis that the policy was a blanket insurance policy in the name of the law firm and the policy did not reference any individual client or collective of clients. The policy itself provided that it was privileged and not to be disclosed except as required by legislation, court order, or the Rules of Civil Procedure. It covered the personal injury case load of all lawyers in the firm. Accordingly, the plaintiffs argued that disclosure of the terms of the policy would be a breach of solicitor-client privilege.
In addition to the argument of solicitor-client privilege, the plaintiffs noted that the policy contained an acknowledgement between the firm and the insurer as to when risk may change in the course of litigation and how that risk is to be acknowledged between the parties. The plaintiffs argued that production of the policy, including those terms, could provide a strategic advantage to the defendants.
Mr. Justice Cornell agreed with the position taken by the plaintiff. He distinguished previous decisions that had required production on the basis that the policy was issued to the firm and not to the plaintiffs themselves. He also noted “the terms of the policy”, presumably a reference to the risk arrangement between the firm and the insurer, in addition to the issue of solicitor-client privilege.
Read the full decision [PDF]
