BC's New Rules of Court Don't Trump Solicitor's Brief Privilege

Earlier this year I highlighted two  judgements (here and here) discussing that the New Rules of Court don’t allow the Court to override solicitor’s privilege.  Further reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Nowe v. Bowerman) the Plaintiff was injured in a 2008 motor vehicle collision and sued for damages.  The Defendant set down a Case Planning Conference asking for an order that “Plaintiff’s counsel advise the defence of the areas of expertise of his proposed experts“.
Madam Justice Dickson dismissed this request finding it would infringe on solicitor’s brief privilege.  In doing so the Court provided the following reasons:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts.  In this case, however, I am unable to identify such a compelling reason.  In these circumstances, I decline to make the order sought.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

bc injury law, Case Planning Conference, CPC, litigation privilege, Madam Justice Dickson, Nowe v. Bowerman, Rule 11-6, Rule 5, Rule 5-3, Rule 7, Rule 7-1(18), Rule 7-2, Rule 7-4, Rule 7-5, Rule 7-5(2), Solicitor's Brief Privilege

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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