Crystal ball gazing — privilege and anticipation of litigation

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Last July we reported on the decision of Justice Cowdroy in the Federal Court upholding insurers’ claim for privilege over the reports of loss adjusters. That decision was important for insurers dealing with large and complex claims as the nature of such claims may be sufficient to support a reasonable anticipation of litigation very soon after an insured event occurs.

The Full Federal Court has now reinforced that first instance decision in a decision delivered immediately before Christmas (Ensham Resources v Aioi Insurance Company [2012] FCAFC 191). The insured’s appeal was dismissed and the court’s reasons are now, arguably, the leading decision on the issue of privilege and loss adjuster’s reports…

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