Litigation privilege over survey reports - the "dominant purpose" test
Axa Seguros SA v. Allianz Insurance Plc & Ors [2011]
Commercial Court, 2 March 2011
This was a case concerning a claim for privilege over an engineering report commissioned in the course of investigations into a claim for hurricane damage sustained to an insured highway in Mexico.
It is settled law that a party seeking to assert litigation privilege over such a document must satisfy two conditions:
- that at the time the document in question was created, litigation was reasonably in prospect, and not a mere possibility; and
- that the document must have been made with the sole or, at least, the dominant purpose of using it to obtain advice about the actual or anticipated litigation.
The Claimant in this case ("Axa") was a Mexican-based property insurer that had agreed to insure against physical loss and damage to the "Road Toll Concession", a network of 38 roads in Mexico, managed under the responsibility of the entity Nacional de Obras y7 Servicios ("Banobras").
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Lawyers Anthony Menzies, James Crabtree, Susannah Wakefield, Peter Kempe, Jonathan Rogers, Dr. Gunbritt Kammerer-Galahn, Franz Janssen, Dr. Astrid Wagner, Wolfgang Schaller, Alain de Foucaud, Christine Flion, Christopher Dixon
