Miah v AMP Life Limited

[2018] NZHC 1964

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2013-404-2864

[2018] NZHC 1964

BETWEEN

ABDUR RAHIM MIAH

Plaintiff

AND

AMP LIFE LIMITED

Defendant

Hearing:

2 July 2018

Appearances:

R J Hooker for the Plaintiff

J Knight and S Kettani for the Defendant

Judgment:

2 August 2018

JUDGMENT (No.2) OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 2 August 2018 at 4:00pm

pursuant to Rule 11.5 of the High Court Rules.

…………………………………

Deputy Registrar

Solicitors:

Vallant Hooker & Partners, Ponsonby, Auckland, for the Plaintiff Chapman Tripp, Wellington, for the Defendant

MIAH v AMP LIFE LIMITED (No.2) [2018] NZHC 1964 [2 August 2018]

[1]    This decision is on Mr Miah’s application under r 8.25 of the High Court Rules 2016 to set aside claims for privilege by AMP Life Ltd in its discovery affidavit. It has provided a folder of documents for inspection. Where redactions to discovered documents are challenged, I have seen both the redacted and unredacted versions. Privilege is claimed on three grounds:

(a)legal professional privilege under s 54 of the Evidence Act 2006;

(b)litigation privilege under s 56; and

(c)settlement privilege under s 57.

By and large I uphold most but not all the claims for legal professional privilege, but not the claims for litigation privilege and settlement privilege.

[2]    In the substantive proceeding, Mr Miah sues on a life insurance policy over the life of his late wife, Afrouza Miah. In 2006 they jointly took out an “AXA Risk Protection Plan” with the National Mutual Life Association of Australasia Ltd with cover of $2 million. A policy on Mr Miah’s life for the same amount was taken out at the same time.

[3]    Mrs Miah died in Bangladesh on 22 May 2007. Shortly before she died, on 4 and 11 May 2007, she made two holograph wills. These dealt with the proceeds of the insurance policy, but with little else. The month before, on 4 April 2007, Mr Miah was adjudicated bankrupt. Mrs Miah is said to have been murdered. Mr Miah’s brother was prosecuted and convicted for her murder. Shortly after her death, National Mutual was given a tip-off to be suspicious of any claim Mr Miah made under the policy. Mr Miah informed National Mutual of the death of his wife in July 2007. On 19 March 2012, National Mutual formally declined his claim under the policy. He began this proceeding in May 2013, suing for his wife’s half share as executor under her will of 11 May 2007. The life insurance business of National Mutual has been

transferred to AMP Life Ltd. For convenience, I will generally refer to the insurer as “National Mutual”.1

[4]    From the outset National Mutual was suspicious of Mr Miah’s claim under the policy. It has not, however, pleaded that Mr Miah was involved in the death of his wife or that, despite a Bangladeshi death certificate as to Mrs Miah’s death by strangling, she is still alive. Instead, it has pleaded affirmative defences of material misstatement and non-disclosure. National Mutual says that in 2006 Mr and Mrs Miah provided a financial needs analysis which, amongst other things, stated that their assets were a family home worth $1,150,000, household furnishings of $60,000, cash of

$60,000 and real estate investments of $890,000, their liabilities were a mortgage of

$1,500,000, credit card debts of $30,000 and Mr Miah’s income for the next 15 years would be $100,000 a year. National Mutual says that when Mr and Mrs Miah applied for the policy, their property development activities had incurred losses of at least

$750,000 for the year ending 31 March 2006 and further losses were likely; they did not own a family home worth $1,150,000; Mr Miah was not able to generate an income of $100,000 a year; his usual occupation was as a slaughterman; Mr and Mrs Miah had incurred significant debts, both personally and as director of various companies; and they had disposed of substantial assets including their family home and real estate investments.

[5]    National Mutual carried out investigations and made enquiries to establish whether it could decline Mr Miah’s claim under the policy on the grounds of misstatement and non-disclosure. The documents for which the privilege claims are contested were made between notification of the claim and its declinature and deal with the investigation, advice given and the decision to decline.

[6]    To carry out the investigation and to decide Mr Miah’s claim, National Mutual used its in-house lawyers. It also instructed an outside lawyer, Mr Burrowes, to assist and to give advice. It made enquiries with the Official Assignee who held records relating to Mr Miah’s financial affairs. It instructed Deloitte, chartered accountants,

1      In some parts I use “AMP Life Ltd” where the context requires reference to the current plaintiff.

to make enquiries and report on Mr Miah’s financial position. A claims review committee considered whether to accept the claim.

[7]    National Mutual has claimed legal professional privilege for communications with its lawyers, in-house and external. It has claimed litigation privilege for the investigations by Deloitte and for its communications with the Official Assignee’s office. It has claimed settlement privilege for some of the matters in the deliberations of the claims review committee. As the party claiming privilege, it is required to prove it.2

[8]    The documents given to me to inspect seem to have very little, if any, relevance to the substantive issues. Standard discovery was ordered. For that a document may be relevant if it or its contents could be used in evidence at trial. The relevance test under s 7 of the Evidence Act 2006 applies. For the misstatement and non-disclosure defences, the Miahs’ financial position in 2006 and what they told National Mutual will count and evidence of those matters will be relevant, but how National Mutual carried out its inquiries to establish those facts is generally peripheral. That is not a criticism of National Mutual’s discovery. It is a safe rule of thumb for discovery to include a document if in doubt.

Legal professional privilege under s 54 of the Evidence Act 2006

[9]Section 54 says:

54       Privilege for communications with legal advisers

(1)A person who requests or obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was—

(a)intended to be confidential; and

(b)made in the course of and for the purpose of—

(i)the person requesting or obtaining professional legal services from the legal adviser; or

(ii)the legal adviser giving such services to the person.

2      Minister of Education v H Construction North Island Ltd [2017] NZHC 3147 at [9].

(1A) The privilege applies to a person who requests professional legal services from a legal adviser whether or not the person actually obtains such services.

In-house lawyers

[10]   Many of the communications for which National Mutual claims privilege under s 54 are with its in-house lawyers. An in-house lawyer may be a legal adviser under s 54.3 Section 51(1) of the Evidence Act has these definitions:

legal adviser means—

(a)   a lawyer; or

(b)   a registered patent attorney; or

(c)   an overseas practitioner

lawyer has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006

Under s 6 of the Lawyers & Conveyancers Act 2006 “lawyer” means:

a person who holds a current practising certificate as a barrister or as a barrister and solicitor.

Accordingly, to be able to claim privilege for communications of its in-house lawyers, National Mutual needs to show that they had current practising certificates.4 It cannot be assumed that in-house lawyers did hold certificates.5 Some lawyers may work in- house and provide legal services to their employers without maintaining current practising certificates.

[11]   Not all work carried out by in-house lawyers is necessarily legal work. They may also have non-legal functions. In this case in-house lawyers assisted in the

3      Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No.2) [1974] AC

405 (HL); Commerce Commission v Caltex New Zealand Ltd HC Auckland CL33/97, 10 December 1998; Bain v Minister of Justice [2013] NZHC 2123, [2014] NZAR 892 at [75]; and Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351.

4      See Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [30]–[31] as an example of privilege for an in-house lawyer, once proof of a practising certificate had been given.

5      For a recent example of a director with legal expertise not holding a practising certificate, see Dold v Murphy [2018] NZHC 994 at [8].

investigation of Mr Miah’s claim, including establishing whether there had been relevant non-disclosure and misstatement. With another insurer, a claims manager might have done the work, but it can be seen as applying legal skills. National Mutual has not however shown that they held practising certificates at the time. Because I am not satisfied that they held practising certificates, internal communications with them have not been shown to be subject to privilege under s 54.

External legal adviser

[12]   In August 2008, National Mutual instructed Mr M Burrowes, a Wellington lawyer, for advice and assistance in dealing with the Miah claim. At the time Mr Burrowes was practising on his own account. Later he went into partnership with others. The fact that he was practising as a lawyer on his own account is sufficient evidence that he met the requirements for a “legal adviser” under s 51(1) and s 54 of the Evidence Act 2006. He could not have practised without a current certificate. Throughout the time that National Mutual was considering Mr Miah’s claim under the policy, Mr Burrowes gave advice, made enquiries, dealt with others involved in providing information and opinions to National Mutual, and gave opinions as to the Miah claim. In carrying out all those tasks, Mr Burrowes was providing professional legal services to National Mutual. Privilege applies to all the communications between his office and National Mutual. The privilege claim for his communications with National Mutual is upheld.

Communications with government departments

[13]   Enquiries on behalf of National Mutual included obtaining information from government departments, LINZ (records of land transactions), the Official Assignee (because of Mr Miah’s bankruptcy), and the Inland Revenue Department (via the Official Assignee’s office) as to Mr Miah’s tax position. The government departments were not legal advisers and did not provide professional legal services to National Mutual. There is nothing to suggest that the communications were confidential. Communications with third parties, including government departments, are not subject

to privilege under s 54. In Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart Cooke J said:6

When litigation is not in prospect the traditional view is that communications between a party or his solicitor and a third party are not privileged, even although they may have been for the purpose of the giving or obtaining of legal advice: see, in addition to Waugh’s case [Waugh v British Railways Board [1980] AC 521 (HL)], Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485 (CA).

Equally documents given by a third party to a legal adviser are not privileged under s 54.7

Deloitte

[14]   Forensic accountants with Deloitte made enquiries, considered information gathered by National Mutual and its lawyers and provided a report (which went through various drafts) about the Miahs’ finances. The accountants, however, are not legal advisers and they did not provide professional legal services. National Mutual does not claim legal professional privilege for the communications of Deloitte with National Mutual and its lawyers.

[15]   The schedule at the end of the decision sets out the documents for which legal professional privilege under s 54 of the Evidence Act is upheld. Some of the documents are email chains and in some of them not all the emails are privileged. In those cases the privileged emails are identified.

Litigation privilege under s 56 of the Evidence Act 2006

[16]National Mutual claims privilege under s 56 of the Evidence Act 2006:

56Privilege for preparatory materials for proceedings

(1)Subsection (2) applies to a communication or information only if the communication or information is made, received, compiled, or

6      Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 (CA) at 602.

7      National Employers’ Mutual General Insurance Association v Waind (1979) 141 CLR 648 (HCA);

Ventouris v Mountain [1991] 1 WLR 607 (CA).

prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the proceeding).

(2)A person (the party) who is, or on reasonable grounds contemplates becoming, a party to the proceeding has a privilege in respect of—

(a)    a communication between the party and any other person:

(b)    a communication between the party’s legal adviser and any other person:

(c)    information compiled or prepared by the party or the party’s legal adviser:

(d)    information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person.

[17]   In Dinsdale v Commissioner of Inland Revenue, decided before the Evidence Act 2006, the Court of Appeal said:8

This appeal concerns the type of legal professional privilege often called “litigation privilege”: the privilege which applies to communications between a legal professional adviser and a third party and between a client and a third party, made with a view to obtaining information to be submitted to a legal professional adviser. It protects the process of gathering evidence for consideration by a lawyer acting for a party in civil or criminal litigation or threatened with such litigation. The Law Commission has said in its discussion paper on Evidence Law: Privilege (1994) NZLC PP23, that the central feature of litigation privilege “is that it represents the fruits of effort on the part of the litigants in preparing for the case” (para 109). The evidence may have been gathered by the lawyer, the client or an agent for either of them, but the work must have been carried out with the dominant purpose of conducting or advising on actual or reasonably anticipated litigation: Guardian Royal Exchange Assurance of NZ Ltd v Stuart [1985] 1 NZLR 596 (CA). The privilege is thus one which is related to:

“The right of a litigant or potential litigant to seek and obtain legal advice on his prospects and the conduct of proceedings under the seal of confidence [and to] the right of such a litigant and his legal adviser to prepare for and conduct his case without, directly or indirectly, revealing the effect of that advice.”

(Ventouris v Mountain [1991] 1 WLR 607, 612; [1991] 3 All ER 472, 476 per Bingham LJ.)

If litigation is but one of two or more equally important purposes, it is not the dominant purpose. It is a question of fact what is the dominant purpose.

[18]   The documents subject to legal professional privilege under s 54 of the Evidence Act have already been identified. The issue here is whether communications

8      Dinsdale v Commissioner of Inland Revenue (1997) 11 PRNZ 325 (CA) at 326.

to and from third parties seeking and giving information for National Mutual and its lawyers fall within s 56. All the documents were made before National Mutual declined the claim.

[19]   The privilege does not apply to documents that were not in themselves privileged before a legal adviser obtained them for a proceeding.9 With the assistance of Mr Burrowes, National Mutual obtained information from LINZ (records of property transactions), from the Inland Revenue Department (records of tax returns by Mr Miah), from the Official Assignee (records relating to Mr Miah’s insolvency). None of this information was privileged and it did not become privileged because it was obtained by a legal adviser. Gathering that information did not turn non- privileged documents into privileged documents. Correspondence with government departments sought documents. While they have minimal relevance, they are not within s 56.

[20]   That leaves the report by Deloitte and documents in the control of National Mutual and its legal advisers that led to the production of the report, including drafts of the report and communications of Deloitte with National Mutual and its legal advisers. Mr Miah already has a copy of the Deloitte report, but not the appendices. National Mutual says that the appendices contain information which has already been given to Mr Miah. The communications between Deloitte, National Mutual and its lawyers are only privileged if they come within s 56.

[21]There are two main questions:

(a)Was litigation reasonably apprehended when those documents were made?

(b)Were they made for the dominant purpose of preparing for an apprehended proceeding?

9      Matthew Downs (ed) Cross on Evidence (online looseleaf ed, LexisNexis) at EVA56.5(b).

Apprehension of litigation

[22]   National Mutual says that it reasonably apprehended litigation on 9 September 2010 when it received legal advice that it had strong grounds to avoid the policy. It claims litigation privilege for communications with Deloitte, the Inland Revenue Department and the Official Assignee. Deloitte was engaged in March 2011. Enquiries with the Official Assignee’s office began about the same time. National Mutual wrote to the Official Assignee declining the claim on 19 March 2012. Mr Miah began this proceeding in May 2013.

[23]   Under s 56(2) National Mutual must have reasonable grounds for believing that it will be a party to a proceeding. Its evidence as to when it believed that there would be a proceeding is weak. It comes from a senior legal adviser with AMP Services NZ Ltd who does not have first-hand knowledge of any of the matters. He does not say that he worked for National Mutual at any relevant time. He does not have any relevant knowledge what National Mutual claims managers and legal staff considered the prospects of litigation to be at particular times. In most cases where an insurer claims litigation privilege, a claims manager or equivalent, whose knowledge can be attributed to the insurer, deposes as to their belief as to the prospects of litigation. That is missing here. In the absence of direct evidence when National Mutual considered that litigation was in reasonable prospect, the question is whether it can be inferred.

[24]   National Mutual’s argument for reasonably apprehending litigation when it received legal advice that there were arguable grounds for declining the claim under the policy does not always apply. For example, in Kerr v State Insurance General Manager Hardie Boys J said:10

I do not think that litigation can be said to be reasonably apprehended until the decision to decline has been made.

and added:

Even if that proposition is not valid as a generalisation, I think it is valid in relation to this case.

10     Kerr v State Insurance General Manager HC Greymouth A10/85, 26 March 1986.

[25]   National Mutual had been given information in May 2007 to suggest that it should be suspicious of any claim made by Mr Miah. In July 2007 lawyers acting for Mr Miah wrote to National Mutual asking it to treat the letter as notification of a claim under the policy, but did not suggest that proceedings would be issued. A letter by another lawyer, dated 7 December 2010, asked for information and documents to allow the lawyer to advise Mr Miah. National Mutual also relies on a letter to the Official Assignee by the same lawyer on the same date in which the possibility of a proceeding is referred to, but National Mutual does not say how or when that letter came to its knowledge. National Mutual does not refer to any letter it received from Mr Miah or anyone acting on his behalf advising that he would sue on the policy.

[26]   A matter counting against the likelihood of litigation is that, as National Mutual knew, Mr Miah had been adjudicated bankrupt. Mr Miah’s interest in the policy vested in the Official Assignee on bankruptcy but there is no evidence of any interest by the Official Assignee in suing on the policy. To the contrary, documents I inspected show the Official Assignee’s staff helping National Mutual by providing information. The Official Assignee later accepted that National Mutual had good grounds to decline the claim.11

[27]   Another matter: it was not clear who could claim under the policy.12 There had been no grant of probate or grant of administration in New Zealand for Mrs Miah’s estate. That was required to sue on her interest in the policy.

[28]   Mr Miah did not begin this proceeding until more than a year after National Mutual declined the claim. That was nearly three years after it says that it considered a court case was likely.

[29]   There have been cases where insurers have been found to have reasonably apprehended litigation very soon after being notified of a claim.13 But the circumstances of this case do not suggest that any belief that grounds for declining a

11     Miah v Official Assignee [2013] NZHC 2726 at [4].

12 That was not known until much later when the Court of Appeal gave its decision on the appeal in the strike-out and summary judgment application: Miah v National Mutual Life Association of Australasia [2016] NZCA 590, [2017] 2 NZLR 241.

13     General Accident Fire and Life Assurance Corp Ltd v Elite Apparel Ltd [1987] 1 NZLR 129 (CA);

Mudgway v NZI Co Ltd [1988] 2 NZLR 283 (HC).

claim could be established can be equated with a belief that litigation was likely to ensue. In Jupiter Air Ltd (in liq) v Australian Aviation Underwriting Pool Pty Ltd, Master Lang said:14

I accept that in any case where an insurance claim is declined there is a possibility that litigation will follow. The existence of such a possibility is, however, not sufficient to provide grounds for withholding documents on the grounds of privilege. There must be a bona fide belief that litigation will probably ensue.

That is relevant: here the insurer is claiming privilege for documents made well before the claim was declined. While litigation was always a possibility, that is not enough. Were it otherwise, every insurer would assert litigation privilege whenever it declined a claim. Something more is required. While National Mutual was concerned to establish that it had grounds to decline the claim under the policy, the evidence and the circumstances of the case do not show on balance that it believed that litigation would follow if it declined the claim.

Dominant purpose

[30]   The dominant purpose question does not arise if litigation is not pending or reasonably contemplated. I consider it in case I am wrong in not finding that litigation was in reasonable prospect.

[31]   In cases of proceedings against insurers who have carried out investigations into the circumstances of claims under policies, courts have sometimes distinguished between investigation of a claim and preparation for litigation; in other cases they have found them indistinguishable. Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart is an example of the first.15 Cases going the other way include General Accident Fire & Life Assurance Corp Ltd v Elite Apparel Ltd, Mudgway v

14    Jupiter Air Ltd (in liq) v Australian Aviation Underwriting Pool Pty Ltd HC Auckland CP71/01, 13 October 2003 at [29].

15 Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 (CA). See also Jupiter Air Ltd (in liq) v Australian Aviation Underwriting Pool Pty Ltd HC Auckland CP71/01, 13 October 2003.

New Zealand Insurance Co Ltd and Re Highgrade Timbers Ltd.16 It is a question of fact in each case.

[32]    National Mutual engaged Deloitte in March 2011. Deloitte acknowledged the possibility that its work might be used in litigation. In its engagement letter it undertook to:

(a)provide an independent assessment on the accuracy of financial information disclosed by Mr Miah in the policy application forms and contrast this with our analysis of the financial position in 2006; and

(b)if required, provide expert evidence in court on the opinion that we form.

The letter also said:

The Services we provide to you may be subject to legal proceedings. If you want the work we do for you to be protected by legal professional privilege, you need to advise us in writing what particular rules and procedures we need to follow in handling information in order for legal professional privilege to apply.

There is however no evidence of any written instruction by National Mutual to Deloitte as to preserving privilege in its work. That is a pointer to the absence of privilege.

[33]   National Mutual used Deloitte’s work, especially its report, as well as other information and advice, when it considered whether to decline the Miah claim for non- disclosure and misstatement. That was clearly the purpose of the work. To claim privilege National Mutual needs to show either that preparation for litigation was inextricably connected with that purpose (so that there was a single purpose)17 or that preparation for litigation was the dominant purpose. In Highgrade Traders Ltd the insurer suspected arson by the insured. The court took the view that advice which went to whether a claim would be accepted would decide whether litigation would follow inevitably. Here it cannot be suggested that litigation would inevitably follow declinature. As shown in [22]–[29] above, litigation was not likely in the circumstances of Mr Miah’s bankruptcy, the co-operation of the Official Assignee and

16 General Accident Fire and Life Assurance Corp Ltd v Elite Apparel Ltd [1987] 1 NZLR 129 (CA); Mudgway v New Zealand Insurance Co Ltd [1988] 2 NZLR 283 (HC); and Re Highgrade Traders Ltd [1984] BCLC 151 (CA) at 173–174.

17     As in Re Highgrade Traders Ltd [1984] BCLC 151 (CA).

the absence of appointment of any personal representative for the estate of Mrs Miah. A carefully considered declinature may dissuade those claiming under the policy from taking further action. While National Mutual obviously wanted to be on strong ground in declining a claim under the policy, that does not mean that Deloitte’s work was preparation for a court case that was bound to follow any declinature. The purposes were distinct in this case, and litigation was not the dominant one. Preparation for a court case was secondary.

[34]   Overall, National Mutual has not shown a case for litigation privilege under   s 56 for those documents for which it does not have legal professional privilege under s 54. For Mr Miah it was also submitted that any privilege in Deloitte documents had been waived under s 65(2) of the Evidence Act because of disclosure of Deloitte’s final report. As I have not found litigation privilege, it is not necessary to consider that argument.

[35]   National Mutual disclosed documents relating to the engagement of Deloitte. Generally documents relating to engagement of consultants are not relevant.18 I have referred to the engagement letter, but only because it deals with the purpose of its report. Other documents relating to Deloitte’s engagement are not relevant and do not need to be inspected.19

Minutes of the Claims Review Committee

[36]   Before Mr Miah's claim was formally declined, it was considered by a Claims Review Committee. National Mutual has discovered minutes of the committee but has redacted parts, claiming privilege under ss 54, 56 and 57 of the Evidence Act. Some of the redactions can be justified on the grounds of irrelevance. They relate to claims by other policy-holders. Their privacy interests and irrelevance to this proceeding justify details relating to their claims being redacted.

[37]   Minutes of meetings on 30 January 2012 and 2 February 2012 refer to legal advice. The redactions for that advice are justified under s 54.

18     Minister of Education v H Construction North Island Ltd [2018] NZHC 20 at [33].

19     AMP.MIA.005.00015 and AMP.MIA 008.00145.

[38]   The redactions have nothing to do with litigation privilege under s 56. The minutes show deliberations whether to accept Mr Miah's claim and how to respond to it, but there is no suggestion that litigation was in contemplation or that the dominant purpose of discussions was to prepare for a proceeding.

[39]As to s 57, the section says:

57Privilege for settlement negotiations, mediation, or plea discussions

(1)A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to the dispute if the communication—

(a)was intended to be confidential; and

(b)was made in connection with an attempt to settle or mediate the dispute between the persons.

(2)A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of a confidential document that the person has prepared, or caused to be prepared, in connection with an attempt to mediate the dispute or to negotiate a settlement of the dispute.

…

[40]   National Mutual does not rely on s 57(1). There were no relevant communications between it and Mr Miah to which the without prejudice privilege applies. Instead it relies on s 57(2) to claim privilege for parts of the committee's deliberations. That subsection may be seen as the settlement negotiation counterpart to s 56, where documents are prepared for litigation. It is not, however, apparent that the committee's deliberations were made "in connection with an attempt to mediate a dispute or to negotiate a settlement of a dispute". While Mr Miah had made a formal claim under the policy, National Mutual had been considering it since 2008 and had still to make a formal decision whether to accept it. Neither Mr Miah nor the Official Assignee had threatened proceedings, if the claim were declined. Just as it is not possible to say that litigation was in prospect before the declinature decision, similarly National Mutual has not shown that there was a dispute to which the settlement negotiation privilege applied. The fact that the committee considered options other

than declining the claim does not by itself mean that it was preparing for without prejudice negotiations. The claim for privilege under s 57 is unsuccessful.

Outcome

[41]   Mr Miah has lowered the number of documents for which National Mutual can claim privilege. The schedule to the decision lists those documents or parts of documents to which privilege applies and which Mr Miah may not inspect. Any document not listed may be inspected. Mr Miah is entitled to costs for the application and the hearing on 2 July 2018 for having mainly succeeded.

[42]I make these orders:

(a)The documents and parts of documents which Mr Miah and his lawyers may not inspect are documents relating to the engagement of Deloitte and those set out in the schedule.

(b)Subject to that, the privilege claims for all other documents are set aside.

(c)AMP Life Ltd shall pay Mr Miah costs on the applications. If the parties cannot agree costs, memoranda may be filed.

(d)Leave is reserved to apply for further directions.

………………………….. Associate Judge Bell

Schedule of documents subject to privilege under s 54

AMP.MIA.001.00438 AMP.MIA.001.00437 AMP.MIA.001.00436 AMP.MIA.002.00234 AMP.MIA.002.00206 AMP.MIA.001.00395 AMP.MIA.002.00195 AMP.MIA.002.00201 AMP.MIA.002.00180 AMP.MIA.002.00190

AMP.MIA.002.00171            - only the emails dated 20 September 2010 at 1:53pm

3:01pm and 3:26pm.

AMP.MIA.002.00170            - only the emails dated 20 September 2010 at 1:53pm,

3:26pm, 3:32pm, and 10:21pm.

AMP.MIA.002.00063 AMP.MIA.001.00320

AMP.MIA.002.00056            - only the emails of 10 February 2011 at 3:07pm,

4:29pm and the untimed response.

AMP.MIA.002.00058            - only the emails of 10 February 2011 at 3:07pm and

4:29pm AMP.MIA.002.00059  - only the top (last) email. AMP.MIA.002.00053

AMP.MIA.001.00314            - only the email of Mr Burrowes of 22 February 2011 at

2:19pm.

AMP.MIA.001.00316

AMP.MIA.008.00222            - only the emails of 10 February 2011 at 3:07pm,

4:29pm, 14 February 2011 at 9:12am, 22 February 2011 at 9:12am and 9:59am.

AMP.MIA.002.00030            - only the emails of 10 February 2011 at 3:07pm,

4:29pm, 22 February 2011 at 9:11am, 23 February 2011 at 11:00am, 11:16am, 23 February 2011 at 2:21pm and 2:24pm.

AMP.MIA.002.00052 AMP.MIA.001.00311

AMP.MIA.008.00041            - all the emails except that dated 24 August 2011 at

2.47pm

AMP.MIA.001.00306            - only the email 1 March 2011 at 3:24pm AMP.MIA.002.00048            - only the top (last) email.

AMP.MIA.001.00304 AMP.MIA.001.00302

AMP.MIA.002.00033            - only the emails of 17 March 2011 at 9:52am and

12:07pm.

AMP.MIA.002.00018            - only the top (last) email. AMP.MIA.001.00185

AMP.MIA.001.00130 AMP.MIA.001.00131 AMP.MIA.008.00197 AMP.MIA.008.00241 AMP.MIA.008.00128

AMP.MIA.008.00117            - only the emails of 30 June 2011 at 2:14pm and 6 July

2011 at 8:03am

AMP.MIA.008.00116 AMP.MIA.008.00126

AMP.MIA.005.00026            - only the emails, not the attachments. AMP.MIA.001.00208

AMP.MIA.008.00044            - only the email of 24 August 2011 at 2:19pm. AMP.MIA.008.00195            - only the email, not the attachments AMP.MIA.008.00206

AMP.MIA.008.00207            - only the email from National Mutual to Mr Burrowes.

AMP.MIA.008.00043           - only the email of 24 August 2011 at 2:01pm. AMP.MIA.005.00022            - only the email of 8 September 2011 at 2:21pm. AMP.MIA.005.00006            - only the email of 3 October 2011 at 4:45pm.

AMP.MIA.005.00023            - only the email of 3 October 2011 at 4:45pm. AMP.MIA.005.00024            - only the email of 6 October 2011 at 11:40am. AMP.MIA.005.00004

AMP.MIA.010.00132 AMP.MIA.010.00133 AMP.MIA.002.00041

AMP.MIA.002.00071            (but not the attachments) AMP.MIA.008.00040

AMP.MIA.008.00042

AMP.MIA.008.00129            - emails of 10 June 2011 at 2:22pm and 11:34am.

Privileged and irrelevant parts of redacted documents

The parts of the documents listed below are not to be inspected. Documents that were redacted but are not listed below may be inspected entirely.

AMP.MIA.002.00205            - only the email of 26 August 2010 at 2:11pm.

AMP.MIA.008.00224            - only the email of 14 March 2011 at 2:02pm and the

untimed response.

AMP.MIA.002.00034A         - only the emails of 14 March 2011 at 3:23pm and 15 March 2011 at 4:35pm.

AMP.MIA.002.00022            - only the part which is currently redacted.

AMP.MIA.008.00214            - only the emails of 20 April 2010 at 9:52am and

10:01am.

AMP.MIA.008.00212            - only the email of 2 May 2011 at 1:42pm.

AMP.MIA.009.00072           - only paragraph 3 under the heading “Financial

underwriting” on the second page.

AMP.MIA.009.00056            - for other claims, policies 1192285, 1172970. For this

claim (policy P90 1766982), the third paragraph (at the bottom of the second page).