The High Court ordered Aviva to disclose a 2002 Burgoynes inspection record and a Fire Brigade report in a discovery dispute arising from a fire at a Dublin warehouse. It upheld Aviva’s claim to litigation privilege over a later Burgoynes report, while directing it to identify when photographs attached to that report were created.
The ruling concerned two documents listed in Aviva’s discovery affidavit: a record of inspection dated 15 November 2002 and a 14-page report dated 20 March 2003. The plaintiff, Artisan Glass Studio Limited, challenged the privilege claimed over them. The case concerns a fire on 2 November 2002 at premises owned by The Liffey Trust Limited, where Artisan Glass and Slovak Limited occupied separate units. Artisan alleged the fire began in Slovak’s unit and spread to its premises; those allegations were not findings in this application.
Justice Denis McDonald found that litigation was reasonably apprehended by the time the inspection record was created. But Aviva had not provided enough evidence to show that defending anticipated third-party claims was the dominant purpose for creating it. The record could also relate to Aviva’s assessment of its potential liability to its own insured, Slovak. The court therefore refused privilege for the inspection record and ordered its production.
The judge reached a different conclusion about the March 2003 report. By then, claims had been intimated, including one by Artisan’s solicitors. Having reviewed the report, the judge concluded its dominant purpose was apprehended litigation between occupiers of units at the premises. The court refused the application to obtain that report.
The court also ordered Aviva to produce a Fire Brigade report dated 8 January 2003, requested by Burgoynes on 13 November 2002. It found insufficient evidence that litigation was the dominant purpose when that report was requested. As the photographs attached to the March report were not separately listed or dated, Aviva must file a further discovery affidavit stating their creation dates. The plaintiff may challenge any privilege claim over them, and the judge urged the parties to seek an accommodation.
The application to release factual passages from the March report was refused. The judgment made no finding of wrongdoing over the destruction of the oven and flue, which the source says occurred on 28 April 2004. The court left the time for compliance and costs to be addressed after hearing the parties.