Privileged and Undisclosed Report Recoverable As Disbursement
Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making it clear that the costs of a privileged and undisclosed expert report can indeed be a recoverable disbursement.
In the recent case (Sidhu v. McNair) the Plaintiff was injured in a 2009 collision. In advancing the case the Plaintiff obtained a report form the Plaintiff’s GP and neurologist. The GP report was privileged in not disclosed. ICBC argued that “this disbursement…was not necessary or proper (due to the fact) that Plaintiff”s counsel chose to maintain privilege over its contents”
District Registrar Cameron disagreed and allowed the disbursement. In doing so the Court provided the following reasons:
[8] I was also referred to a recent decision of Master Bouck in Cooknell v. Cooknell, 2013 BCSC 1653. Her Honour very cogently set out the principles that ought to be applied in determining whether or not a disbursement should be recovered and says:
A “necessary” disbursement is one which is essential to conduct the litigation. A “proper” disbursement is one which is not necessary but is reasonably incurred for the purpose of the proceeding:MacKenzie v. Darke, 2003 BCSC 138 at para. 18..
Her Honour goes on to say:
When considering whether a disbursement is proper, the correct viewpoint to be adopted by a taxing officer is that of a sensible solicitor sitting in his chair and considering what, in light of his then knowledge, is reasonable in the interests of his client: Francis v. Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing officers ought not to second guess a competent counsel doing a competent job, solely on the grounds that other counsel might have been more sanguine or less cautious in determining how the job ought to be done
[9] I respectfully agree with these statements and having been advised of the rationale for obtaining the report and the matters addressed by Dr. Sekhon I am satisfied that the decision that was made to obtain the report was proper ad the cost is reasonable. The disbursement is allowed as presented.
To my knowledge this decision is not publicly reported but as always I am happy to provide a copy to anyone who contacts me and requests one.