By David Slatyer, Partner

This case addresses an interesting point regarding the use of material, obtained in a litigated TPD claim, to also assess an undetermined TPD application, and the relevance of Facebook evidence in such claims.

Ms Gavan issued court proceedings in July 2013 alleging (amongst other things) that the defendants (superannuation fund trustee and insurer) had constructively denied (by failing to determine) her application for TPD benefits submitted some 16 months earlier.  The plaintiff of course also pleaded that she satisfies the TPD criteria in the insurance policy, arising from chronic post traumatic stress disorder and depression causing her to be medically discharged from the police force at age 26 and permanently preventing her from returning to suitable employment.

In the proceedings:

• MetLife pleaded in its defence that its assessment of the TPD application was “continuing”;
• The parties consented to orders that material produced in the proceedings could be used for the dual purpose of the proceedings and the assessment of the TPD application by the defendants. (This was later set aside by the court on the basis that the court’s leave is required for such an order);
• MetLife subsequently served Ms Gavan with a Notice to Produce records from her Facebook account (it had earlier obtained a report from a consultant regarding Ms Gavan’s publicly available Facebook information), which Ms Gavan opposed.

After argument, in ordering Ms Gavan to produce the documents the court decided:

• There was the requisite legitimate forensic purpose in the Facebook records. It said such records have “obvious relevance to the principal issue in dispute (as well as potential relevance to the issue of the credit of Ms Gavan) insofar as they are likely to shed light on the veracity of the claimed severity of her symptoms …and hence the weight that can be placed on the opinions expressed by the medical experts”. MetLife was able to point to allegations of specific symptoms and incapacity in the Claim and the existing Facebook material it had obtained which called those allegations into question.
• The use by MetLife of such Facebook records (to be produced pursuant to a notice to produce in the litigation) for its assessment of the TPD application, would not infringe the usual implied undertaking (Hearn v Street) not to use documents obtained in court proceedings for a collateral or ulterior purpose. The court said that the two parallel processes (the administrative assessment and the litigation) to be sufficiently connected in that such documents will “inform and be relevant to the same primary issue”.  As such there was no abuse of process.

MetLife also applied for leave to use other documents obtained and to be obtained in the litigation, also for the purpose of assessing and reaching a decision on the parallel TPD application. The court decided that a “blanket waiver” of the usual implied undertaking would not be appropriate without the court knowing whether the documents would be sufficiently connected or whether special circumstances exist.

The relevance of social media evidence in TPD claims has generally been accepted in the authorities such as TAL v Shuetrim and Hellessey v MetLife; obviously it depends on each case. Obtaining publicly available information can help to obtain orders compelling a claimant to produce and disclose further, private information.

Care must be taken by insurers (and trustees) in court proceedings when considering using material obtained in the litigation for any other purpose, including any undetermined application for benefits related to the litigated dispute.  Whilst generally arguable that the purposes are sufficiently connected, it would be prudent to obtain the agreement of the plaintiff.