Legal cost protection and the question of privilege

With the introduction of legal cost protection, defendant insurers are increasingly requesting the production of legal cost protection indemnity agreements (Indemnity Agreement). In some cases, it is simply requested as an undertaking from discovery; in other cases, the defendant insurer is arguing that disclosure is required based on statute or regulatory provisions that require the disclosure of “insurance” contracts.

Irrespective of the defendant insurer’s motivation for seeking production, the question is whether these agreements are privileged and required to be produced?

In a recently published article in Advocate Daily, the issue of legal cost protection and the question of privilege is fully explored, including case references and established precedents that are very helpful when navigating this evolving legal topic.

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Impecuniosity no Protection from Cost Award

The theory held by many personal injury lawyers that impecunious and therefore “judgment proof” plaintiffs are immune to adverse cost exposure was further tested in the costs endorsement in Lakew v. Munro, 2014 ONSC 7316 (CanLII) (“Lakew”). We have previously discussed this topic in our May 2014 blog on Leochko v. Rostek, 2013 ONSC 7899 (CanLII).

In Lakew, this motor vehicle accident-related action was tried before a jury in June 2014. The jury found that the accident did not cause her any injuries. The defendant had argued a threshold motion during the jury deliberations, but this was withdrawn upon the jury’s verdict. The Court invited both parties to submit written cost submissions.

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