In brief - Communications continue to attract privilege because
expert formed own conclusions
The Supreme Court has held in a recent decision that a claim for
privilege in respect of communications between a party's legal
advisors and an expert retained by the party, and draft reports
prepared by the expert, was not waived by service of the
Bank applies for access to documents produced on subpoena
Privilege claimed over draft reports and documents recording
OMB claimed client legal privilege in respect of:
draft reports of the expert containing comments, requests or
advice made by the OMB legal advisors and communicated to the
draft reports of the expert created for the dominant purpose or
with the expectation that those draft reports would be provided to
the OMB legal advisors for the purpose of those advisors
considering or providing comment or advice
documents recording communications between the expert and the
OMB legal advisors
Was it inconsistent to rely on expert's report while
maintaining claim for privilege?
The issue before the Court was whether, pursuant to section 122
Evidence Act, it would be inconsistent for OMB to rely on
the expert's report and at the same time maintain a claim for
Justice Ball set out the history of section 122 and noted that
the meaning of "inconsistency" is informed by
considerations of fairness between the conduct of the client and
maintenance of the confidentiality.
His Honour observed that the fact that legal advisors have
communicated with an expert and provided comments on drafts of a
report does not mean the expert has not reached her own conclusions
or relied on material that has not been disclosed in the report. In
fact, it is of general assistance to the court when parties'
legal advisors help experts to narrow the issues and present their
opinions in an admissible and understandable form.
OMB held to be entitled to maintain claim for privilege
The court held that the privileged materials had not influenced
the content of the expert's report in such a way that the
service of the report was inconsistent with maintaining the
privilege in those materials. Accordingly, OMB was entitled to
maintain its claim for privilege.
Legal advisors should ensure that their input does not
influence expert's conclusions
Relying on Justice Ball's reasoning, it will be important
for legal advisors briefing an expert and wanting to maintain
privilege over their communications, to ensure that the assistance
and commentary provided does not influence the expert's
conclusions. It is permissible for the legal advisors to test the
expert's findings by raising factual or hypothetical issues
which may cause the expert to alter their conclusions.
As long as the expert continues to form his or her own
conclusions, all working drafts and communications passing between
the expert and the legal advisors will continue to attract
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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