The appellants appealed an order requiring them to produce their former lawyers' file in a medical negligence action.
The respondents sought the file to support a limitation period defence, arguing the appellants' former lawyers' file was relevant to the incapable plaintiff's capacity and whether his brother acted as a de facto litigation guardian, and that privilege had been impliedly waived.
The Divisional Court allowed the appeal, holding that instructing counsel does not make one a de facto litigation guardian, and that the appellants had not impliedly waived solicitor-client privilege over the file.
