Litigation privilege

Documents prepared by or for a party in anticipation of litigation, and for the purpose of that litigation, are protected from disclosure by litigation privilege. In Axa Seguros SA de CV v Allianz Insurance plc [2011] EWHC 268 (Comm) the important question discussed by Christopher Clarke J was whether reports commissioned by reinsurers into the amount of loss suffered by the assured were protected by litigation privilege when those reports subsequently disclosed that the reinsured had failed to comply with policy conditions. The learned judge ruled that privilege is available only where the primary purpose of the document being prepared is anticipated litigation, so that in the present circumstances there was no litigation privilege.

Axa v Allianz: the reinsurance cover

The claimant, a Mexican-registered insurance company, insured Banobras, a bank owned by the Mexican state, against the risks of physical damage to a ‘Toll Road Network concession’ in the period 1 November 2000 to 31 December 2001 The concession covered 38 roads, including the Don Nogales highway.