As a personal injury lawyer since 1995 I have had many personal injury claimants call and regret settling their ICBC injury claims without a lawyer. It is very difficult to re-open a case after a settlement agreement release has been signed by the claimant. If the injury claimant has sought the advice of a lawyer before settling but does not hire the lawyer the question becomes whether this is could be considered being under duress without legal advice.
The law has being clarified in the following Court of Appeal case which stands for the proposition that parties must disclose any prior legal advice on the same subject matter if they claim duress without legal advice (2015 BCCA 52).
The defendants in complex civil case pleaded that an agreement was signed “under duress and without legal advice.” There was evidence, however, that defendant had in fact received legal advice on the same subject matter as the agreement. The Court of Appeal found that he was deemed to have waived privilege and that the Chambers judge was wrong to deny the application to obtain the records of the advising lawyer.
The British Columbia Court of Appeal also found that the Chambers judge erred in failing to consider whether fairness and consistency in the lawsuit required that waiver be implied. Although Judge Stromberg-Stein,dissenting, argued that the result was moot as a result of a subsequent amendment to the Defendants’ pleading the Court and should be dismissed, the Court exercised its discretion to decide the appeal on the merits.
Judge Newbury writing for the Majority did temper the ratio of this case stating,
 This is not to suggest that a person’s general knowledge or understanding of a legal principle, obtained as the result of legal advice received in a different context, will necessarily or even usually be sufficient to result in deemed waiver. The advice must obviously be highly relevant to the litigation for the tests of “fairness and consistency” to overcome the important principle of solicitor-client confidentiality. In this instance, however, it appears the advice (assuming advice was obtained) related exactly to the central issue, or one of the central issues, of the case .”
Bottom line is: Legal Privilege once waived is lost. Keep reading and learn more about settling your ICBC claim without a lawyer.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.