Can a defendant commence a third party claim against a plaintiff’s lawyer for failing to preserve evidence?
In most cases, the answer is no, according to the Court of Appeal.
In Hengeveld v. The Personal Insurance Company, the plaintiffs sued their insurer for failing to preserve their vehicle following a motor vehicle accident.
The insurer denied that it was required to preserve the vehicle and, in a third party claim, alleged that the plaintiffs’ lawyers were negligent in failing to take adequate steps to ensure preservation of the vehicle.
On a motion, the plaintiffs’ lawyers were successful in striking the third party claim. On appeal, the Court of Appeal agreed that there was no valid cause of action.
The Court of Appeal held that, based on principles of agency, any negligence of the plaintiffs’ lawyers would be attributed to the plaintiffs. The defendant insurer only needed to plead contributory negligence against the plaintiffs, which it did. The third party claim against the plaintiffs’ lawyers was redundant.