The plaintiffs in a class action applied to modify the rule which abrogates privilege in respect of expert reports, so that a group-wide loss report obtained for the purposes of mediation would maintain its without prejudice privilege. The court concluded that to dispense with the requirement for mediation reports to be disclosed would not be in keeping with the broader policy considerations for disclosure contained in the UCPR, nor was it necessary in the circumstances, as a non-partisan expert can easily explain differences or discrepancies between group-wide and plaintiff-specific reports.
Damian Clothier QC (with E Hoiberg) appeared for he respondent, instructed by King & Wood Mallesons.
Michael May (with L Armstrong QC) appeared for the applicants, instructed by Clyde & Co.
The judgment is published here.