Insurer Winterthur scored a key victory in its negligence action against law firms involved with The Accident Group (TAG) last week, when it won the right to see thousands of client files for TAG's scheme.

The panel firms had claimed the files - many of which contain sensitive medical information about clients - were subject to legal privilege.


However, Mr Justice Aikens said that no legal professional privilege attached to documents pre-dating the claimant's application for after-the-event insurance. He also found that claimants had signed away the litigation privilege that would have applied to later documents, through a clause in the insurance policy.


Firms will now have to hand over a proportion of the 75,000 client files, to be audited by Winterthur. The firms will also now be able to pass the files to one another.


Erik Salomonsen, a partner at Bond Pearce in Plymouth, which is acting for 140 of the 700 panel firms and took the lead on the privilege issue, said: 'It was the professional and legal duty of the TAG panel solicitors to uphold their former clients' confidence and privilege, and we took the view that breach of that duty exposed solicitors to serious disciplinary sanction and claims by TAG claimants for breach of confidence.


'That is what underpinned our whole approach to the privilege issue. The judgment has provided clarity, and we are now considering the position.' Mr Salomonsen was unable to comment on whether the firms will appeal.


Frank Maher, a partner at law firm Legal Risk in Liverpool, said: 'It would have been very hard for [Winterthur] to bring the case without access to those files. The outcome is not entirely unexpected, but it will be a huge disappointment for the firms. This will give encouragement to any additional [insurers] that have been invited by the court to bring forward their claims.'


Winterthur alleges that firms failed to vet and monitor cases properly. The firms are vigorously defending this action. Claims under the TAG scheme had a 75% failure rate.