Commercial Union Assurance Company PLC. v. M.T. Fishing Co. Ltd.

In this matter the Plaintiff insurers paid out a fire damage claim. Subsequently, it was learned that the fire may have been intentionally set. The insurers then instituted a fresh investigation into these allegations which ultimately resulted in commencement of the present action to recover the insurance moneys paid. At issue in this motion was whether the reports and information subsequent to the commencement of the second investigation were privileged from production. The court at first instance reviewed the law of privilege and ultimately held that the dominant purpose of that investigation was to commence an action to recover the insurance moneys paid out. Indeed, the court could see no other reason for such investigation. On appeal to the Federal Court of Appeal, it was noted that the motions Judge did not determine if litigation was in reasonable prospect when the reports were prepared or whether litigation was the dominant purpose for the creation of the reports. The Court of Appeal noted that this was because counsel had agreed that they could determine what documents and information had to be disclosed if the Judge merely determined whether the dominant purpose of the investigation was to commence an action to recover the insurance moneys paid. In light of this agreement, the Court of Appeal found no error in the finding of the motion Judge and dismissed the appeal.