Slatter, Rowbotham AND O'Ferrall JJA

5.17: People who may be questioned
5.37: Questioning experts before trial
6.7: Questioning on affidavit in support, response and reply to application
6.8: Questioning witness before hearing

Case Summary

Following her husband’s death, Mrs. Gault commenced litigation claiming unjust enrichment on the basis that Mr. Gault had not contributed to household expenses proportionate to his means, as required by a prenuptial agreement between them. Mrs. Gault subsequently passed away, and the litigation continued as between the two estates.

Mr. Gault’s estate sought Summary Dismissal on the basis of a limitations defence, and Mr. Gault’s estate demanded to question Mrs. Gault’s lawyer and accountant prior to the Application under Rule 6.8, to ascertain Mrs. Gault’s knowledge of a potential claim (or lack thereof). Mr. Gault’s estate argued that the matters sought to be questioned on were matters of fact and not subject to privilege. The Case Management Judge held that the lawyer and the accountant could not be Questioned pursuant to Rule 6.8, and Mr. Gault’s estate appealed. Mr. Gault’s estate also appealed the Case Management Judge’s Decision with respect to legal fees paid by Mr. Gault’s estate. The Appeals were heard together.

The Court of Appeal held that Questioning pursuant to Rule 6.8 was not permitted in this case as the matters sought by Mr. Gault’s estate were protected by solicitor-client privilege. The Court ruled that the death of a party is not the basis to set aside privilege, particularly where the estate of that person is involved in the litigation. The Court also noted that Rule 6.8 is not a substitute for Questioning persons who are not listed in Rule 5.17. The Court also stated that examination of experts under Rule 6.7 is only allowed on non-privileged matters and in the limited circumstances specified in Rule 5.37. On the matter of Mr. Gault’s estate’s legal fees, the Court found no reviewable error on the part of the Case Management Judge. The Court dismissed both Appeals.

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