The Appeal concerned whether a report commissioned by the Appellant into the failure of a pipeline was protected from disclosure by litigation privilege, and whether that privilege was waived or lost.

The Court also dealt with an Application to admit fresh evidence. The Court reviewed the Rules regarding Affidavits of Records, including that undisclosed records cannot be used by a party at Trial, as provided in Rule 5.16. Ultimately, the fresh evidence was not admitted.

On the issue of litigation privilege, the Court considered the interplay between the obligation to produce all relevant and material records pursuant to Rule 5.6, and privilege. It also noted that the Case Management Judge, who ruled that the reports were not privileged, opted not to inspect the reports despite the right to do so pursuant to Rule 5.11.

Without drawing a firm conclusion on whether the reports were privileged, the Court considered whether privilege had been waived. One way the Court noted that privilege can be waived is when an expert report is disclosed under Rule 5.35 for use at Trial. In this case, privilege was waived when the reports were provided to regulatory bodies. The Appeal was therefore dismissed.