IB v CB

An expert report sent confidentially to the court to assist in approving a settlement retains privilege. A procedural order requiring service of evidence does not remove that privilege where the document was not intended to be relied upon or falls outside the order’s context. In approving a periodical-payment settlement, the court may include provisions for repayment and interest after the claimant’s death, provided the repayment period is fair. It may also retain documents on the court file where a long-running order may later require an informed application. A medical-examination provision is appropriate only where it is ancillary to a specified annuity-provider mechanism and is subject to reasonable safeguards.

The claimant, suing by her mother and litigation friend, sought approval of a settlement comprising a substantial lump sum and annual periodical payments for life. The defendant applied for disclosure of financial-adviser reports sent confidentially to the judge, relying both on alleged waiver of privilege and on paragraph 6(c) of an earlier procedural order requiring financial evidence to be served with the schedules of loss.

The defendant also proposed additions to the draft order concerning repayment and interest after death, retention of documents on the court file, and medical examinations. The issues were whether the reports were privileged and covered by the procedural order, and whether the proposed provisions were appropriate.

1. Privilege. An expert report sent to the judge to explain why a claimant’s advisers recommend a particular settlement remains privileged. Disclosure would discourage the complete presentation of relevant material to the court. Sending the report itself does not produce waiver merely because counsel could instead reproduce its contents in an opinion. The application for disclosure therefore failed.
2. Procedural order. Paragraph 6(c) of the order dated 15 January 2010 required service of evidence on which the parties intended to rely with the schedules and counter-schedules. It did not remove privilege in documents not intended to be relied upon. The Cropper reports were obtained after the schedules and for the later settlement alternatives, so the paragraph did not apply to them.
3. Terms of settlement. A provision requiring repayment to the defendant’s insurer of the appropriate proportion of an annual payment falling due after death, together with interest for late repayment, was fair. However, six calendar months, rather than 56 days, was required to give the claimant’s estate reasonable time to arrange repayment.
4. The court approved retention of specified documents because the order might operate for decades and future applications under the liberty-to-apply provision would benefit from the court retaining the original materials.
5. A medical-examination provision was approved because it operated only if an annuity provider was proposed, was limited to obtaining an up-to-date medical picture for that purpose, and contained safeguards concerning notice, disclosure and costs. The consent order was approved subject to amendments and final drafting by counsel.

First-instance decision. No earlier appellate decision is stated in the judgment.