Julia Boddy

This appeal concerned which party should bear the cost of interim preservation of vehicles in a damages action.

BMW claimed total loss of 2,966 vehicles due to Autoport's negligence and sought to dispose of them, while Autoport required their preservation for inspection.

The Master and Divisional Court ordered Autoport to bear the costs, but the Appeal Judge reversed, placing the burden on BMW.

The Court of Appeal found errors in the lower courts' application of Rule 45.01, emphasizing that the test for interim preservation of evidence should focus on trial fairness, not a rigid "balance of convenience" test.

The court concluded that BMW, as the party in possession of the evidence and with the information needed for Autoport's inspection, must bear the costs of preservation until it provides the necessary disclosure.

The plaintiff brought a motion for summary judgment seeking a declaration that its insurers had a duty to defend and indemnify it against a counterclaim in ongoing Wisconsin litigation.

The court found that the summary judgment procedure was inappropriate for duty to defend applications but proceeded to determine the issue based on the pleadings and the insurance policy.

The court concluded that the insurers had no duty to defend because the Wisconsin counterclaim sought only declaratory relief and not compensatory damages, which was a requirement for coverage under the errors and omissions policy.

The plaintiff's motion was dismissed, and partial summary judgment was granted to the defendants dismissing the duty to defend claim.