Privilege, Litigation and the Loss Adjuster s Report - Are you Prepared?

Transcription

1 Privilege, Litigation and the Loss Adjuster s Report - Are you Prepared? Asian Claims Convention Bangkok 21 March 2013

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3 Introduction > Almost any substantial claim by an insured will prompt the insurers to appoint a loss adjuster. > Loss adjusters reports inevitably contain sensitive information. > Are the insurers and brokers and their lawyers the only eyes that will see your reports? > Will your reports stand up to cross examination?

4 For whose eyes only? > Loss adjusters reports do not simply set out the facts but address and make recommendations on: > reserves; > repair, replacement and rectification; > policy coverage; > Underinsurance; > Contribution; and > fraud.

5 Litigation Privilege - English law > Documents must be: > confidential; > a communication between a lawyer (acting in a professional capacity) and his client, a lawyer (acting in a professional capacity) and a third party or the client and a third party; > made for the dominant purpose of litigation; and > litigation must be pending, reasonably contemplated or existing.

6 Confirmation of Litigation Privilege Under Australian Law > The principles in operation in determining litigation privilege are: > Litigation reasonably contemplated an objective test from the point of view of "a reasonable person in the position of the relevant solicitor". > Dominant purpose assistance or advice in relation to the anticipated proceedings. > This is an objective test. > Communication must also be confidential.

7 Ensham Resources Pty limited v AIOI Insurance Company- Background > Australian decision on privilege for loss adjuster reports. > AIOI s lawyers instructed loss adjusters. > Privilege was claimed over parts of the 10 reports prepared. > Ensham claimed that the reports were part of the insurer's normal investigation into a claim and that they were prepared at a time when the facts were still unknown. > Reports addressed causation, coverage and policy limits for removal of debris.

8 The Judgment > The court agreed with AIOI that the reports were privileged and could not be disclosed to Ensham. > Critical factors indicating that litigation was reasonably contemplated: the magnitude of the claim and the fact that the two grounds on which the insurer sought to resist the claim were identified from at least the date of the loss adjuster's retainer; and the size of the claim and the availability of defenses meant that the circumstances were "of the kind that human experience (and the experience of lawyers) would recognize as being highly conducive to litigation."

9 Lessons from Ensham Resources Pty limited v AIOI > Nature of the claim may be sufficient to allow a view to be formed that litigation is anticipated by an insurer. > Lawyers instructing loss adjusters can be a significant factor showing litigation is contemplated. > Labelling a document privileged is not determinative. > Privilege can be claimed at an early stage. > Reports can be sought for a number of reasons, some of which will satisfy the requirements for privilege. > If the dominant purpose is in relation to anticipated litigation, litigation privilege can be claimed.

10 Position in Singapore > Privilege is a statutory right under the Evidence Act. > Can apply to advice and to reports. > Not only communication between lawyers and their clients but also > Litigation privilege, contemplates, as well, communications between a solicitor and third parties

11 Position in Singapore > Generally follows the UK/Australian approach. > Can apply to instructions from lawyers as well as in house lawyers/counsel. > Best practice in any event would be to communicate to loss adjusters through lawyers once instructed.

12 Position Under Thai Law The Civil Procedure Code of Thailand ("CPC") > Privilege can be claimed over documents obtained by a lawyer from their client in their capacity as the client s lawyer. > the court has an absolute discretion to decide if all or part of a document is privileged. > No distinct discovery process or duty to disclose.

13 Thai Law Disclosure of Loss Adjusters Reports Office of Insurance Commission (OIC) dated 26 June B.E.2552 (2009) > a loss adjuster will produce a report and give it to both the insured and the insurer within 45 days of their appointment as loss adjuster. > litigation privilege unlikely to apply to loss adjusters reports in Thailand. > Loss adjusters report are unlikely to be considered confidential.

14 Position in Thailand > loss adjusters reports must be provided to both insured and insurer. > pressure on loss adjusters to ensure that any report issued is not biased and is balanced? > Who is your client? And to whom do you report? > what should be included in an initial report? > and in how much detail?

15 Subsequent Reports > Although Thai law provides that a report must be issued to the insured within 45 days of being appointed, the law is silent on subsequent reports. > Unclear whether subsequent reports must be disclosed to the insured. > This uncertainty in the law may give insurers some scope to keep the subsequent reports confidential. > Insurers and loss adjusters should carefully consider the scope and contents of the initial report.

16 See you in Court! > Insurers and their lawyers will decide if your report is to be disclosed. > If it is disclosed, the other parties will have access to it and the loss adjuster may be required to give evidence in the proceedings. > Other parties will closely scrutinise your report. > Examination in chief and/or written (and sworn?) statement. > Loss adjuster to be cross-examined by the lawyers for the other parties. > Hot tubbing.

17 In the witness box > Other parties can retain loss adjusters as their expert witnesses. > They will assist to prepare cross examination of the other loss adjusters. > The loss adjusters for the other parties will be looking to identify inconsistencies, ambiguities and weaknesses in your report and to identify alternative approaches to support the position of their clients. > Are there enough loss adjusters to serve as expert witnesses?

18 Multi Jurisdictional Issues > what if loss occurs in Singapore but policy is subject to Thai law? > Will a loss adjuster have to submit his report to both insured and insurer within 45 days? > If a policy was subject to Thai law, would the OIC rules apply to a loss occurring outside Thailand? > Would OIC rules apply to an insurer outside Thailand insuring a Thai loss?

19 Conclusions Will a Loss Adjuster s Report be Privileged? > Was the dominant purpose of your report to assist the insurer in relation to anticipated proceedings, where litigation was reasonably contemplated. > Best practice: ensure that communication between insurers and loss adjusters is made through lawyers and that reports issued are labeled confidential. > For many claims which the insurer reasonably believes will be contentious, litigation privilege is likely to operate. > Best practice: ensure that reference is made to the likelihood of litigation in instructions to the loss adjusters and/or in the first report. > Thailand: consider carefully the contents of the initial report.

20 Privilege, Litigation and the Loss Adjuster s Report - Are you Prepared? Q & A

21 Speaker profile Bangkok Alan Polivnick Partner, Litigation Group +66 (0) Alan is a partner in the firm s Litigation Group with a focus on the aviation, shipping and insurance and reinsurance sectors. He regularly advises brokers, insurers and reinsurers on legal issues, including coverage, liability exposure and claims handling and resolution. Alan also acts for parties looking to invest in the Thai insurance market, including due diligence, setting up insurers and brokers and related regulatory issues. Alan is advising on the 2010 Unrest and the 2011 Floods.

22 All references to Watson, Farley & Williams and the firm in this presentation mean Watson, Farley & Williams LLP and/or its affiliated undertakings. Any reference to a partner means a member of Watson, Farley & Williams LLP, or a member or partner in an affiliated undertaking, or an employee or consultant with equivalent standing and qualification. This presentation constitutes attorney advertising. Watson, Farley & Williams 2013