Walker v Forbes [2017] NZHC 2694 concerned two interlocutory applications for particular discovery and pre-commencement discovery of any insurance policies held by the defendants.  Those policies were not at issue in the pleadings.  All defendants reached agreement with the plaintiffs, under which they confirmed that they held no relevant policies of insurance, except Mr Hansen who declined to provide the plaintiffs with details of his insurance policy. 

The plaintiffs alleged particular discovery orders were necessary because it was not in the public interest for a plaintiff to be required to proceed with a lengthy and expensive trial in circumstances where any judgment was likely to be of limited value because of the defendants' inability to meet it.

Dismissing the plaintiff's claim, the High Court took the view that existing authorities in New Zealand firmly establish that documents not at issue in pleadings are neither relevant nor discoverable.  The High Court considered:

  • The application amounted to an attempt to require Mr Hansen to provide information regarding an aspect of his financial position.  A plaintiff does not have the right to obtain such information, other than in circumstances where the plaintiff can demonstrate a real risk that the defendant is dissipating his or her assets (and in those circumstances a plaintiff may obtain a Mareva injunction or Anton Piller order)
  • It is for the plaintiffs to determine whether it is worthwhile to pursue the defendants' through judgment, based on its view of the merits of the claim, together with such knowledge it can glean of the defendants' financial position
  • The role of the court is to determine cases that come before it, this task must be undertaken without consideration of the likely value of the judgment to the parties.

The plaintiffs sought pre-commencement discovery under High Court Rule 8.20 on the basis that they may wish to bring a claim directly against Mr Hansen's insurer.  The High Court dismissed this claim, stating that the plaintiffs were not genuinely considering the claim, instead using it as a purpose of obtaining disclosure of Mr Hansen's insurance policy to assist them in the settlement negotiations, and to determine whether it was worth pursing Mr Hansen to judgment.

This case bears resemblance to the Court of Appeal's decision in Finnigan v Ellis [2017] NZHC 1397, which we reported on in our insolvency update here.

See the Court's decision here.