The defendants in a solicitor's negligence action brought a motion to compel the plaintiffs to fulfill an undertaking to produce the underlying litigation files from a settled will challenge.
The plaintiffs argued the files were protected by solicitor-client privilege and were not in their possession.
The court held that by suing the defendant lawyer for negligence and claiming the costs of the will challenge as damages, the plaintiffs had impliedly waived solicitor-client privilege over the underlying files.
The court ordered the plaintiffs to fulfill the undertaking, as the files were necessary for the defendants to assess the reasonableness of the damages claimed.
