26th – 27th May 2021
Travelers Insurance Company Ltd (TIC)(R2 below) appeal against the order made on 31/7/20 by Mr Andrew Hochhauser QC (sitting as a Deputy High Court Judge) determining the issue before the court in favour of the Applicants.
The Applicants below were the joint administrators of Transform Medical Group (Transform). Transform sought an order under section 234 and section 236 of the Insolvency Act 1986 against the First Respondents below (Berrymans Lace Mawer) that they deliver up to the Applicants’ solicitors all files that they held pursuant to retainers with the Company.
The Judge held that the joint retainer files could be disclosed to the Applicants’ solicitors.
The matter arises out of long-running PIP litigation. Transform (now in administration) operated surgical clinics providing breast implants.
The issue raised by the case is:
where insurer A and insured Company B instruct solicitors C under a joint retainer, can company B without knowledge or consent of insurer A assign to company D its cause of action against solicitors C so as to override insurer A’s joint privilege and allow company D access to the jointly privileged documents?
In other words: does the assignment of the cause of action to company D override insurer A’s joint privilege in the document by reason of the successor principle or otherwise.
TIC submits that the answer to this question is no and that the judge erred in answering yes.