In Rhatigan v Eagle Star Life Assurance Company the High Court found that Eagle Star was not required to provide discovery of documents prepared in anticipation of repudiation of a life insurance policy, as these documents were protected by litigation privilege. A decision to repudiate is so likely to provoke litigation, that the steps taken by an insurer towards making such a decision must necessarily be characterised as steps taken in contemplation of litigation. Communications between the insurer and reinsurer were also protected by privilege.
The case involved a claim for specific performance of a 2 million life insurance policy by the personal representatives of the insured, who was deceased. The policy had been repudiated by Eagle Star on the grounds of misrepresentation and non-disclosure of material facts relating to the insured's medical history.
The repudiation was challenged by the personal representatives (the plaintiff), which also sought discovery of documents prepared by the insurer following the death of the insured - mainly letters between the insurer and its reinsurers regarding the strategy to be adopted in respect of the claim.
The plaintiff argued that the documents could not be protected by litigation privilege because they were prepared before litigation could have been contemplated by the insurers. Litigation privilege protects confidential documents assembled with the dominant purpose of preparing to bring or to defend against a litigation. The privilege extends to communications created before the actual commencement of litigation, provided that litigation was contemplated or reasonably apprehended. In this case, the plaintiff contended that litigation could not have been reasonably apprehended at the time the documents were created during the investigation of coverage.
The insurers argued that they contemplated litigation as soon as they received a request for a 'terminal illness' claim form, as the request raised suspicion because the insured had been in apparently good health less than three months earlier. The insurers contended that an insurance company generally expects and contemplates litigation when it refuses to pay out on foot of a claim made on a policy of...