In September 2025, the High Court held that only a party to the proceedings can depose to a discovery affidavit, and since the insurer in subrogated proceedings is not a party, it could not do so.
The dispute arose after the insured respondent failed to deliver a proper discovery affidavit, instead submitting an affidavit deposed to by a director of the insurer, who claimed that the insurer had taken over the respondent’s rights under subrogation and was in possession of the relevant documents. The court had to decide whether the insurer, not formally joined as a party, could make discovery on behalf of the respondent.
The applicant had served a notice on the respondent in December 2024, requiring discovery of documents. Despite several reminders and a notice of non-compliance, the respondent did not deliver a discovery affidavit. Shortly before the hearing, the respondent filed an affidavit deposed to by a director of the insurer, who stated that the insurer was acting under subrogation and was not in possession of the relevant documents. The applicant objected, arguing that the affidavit was not compliant as it was not made by the respondent, the party to the proceedings.
The court confirmed that court rules require discovery to be made by the party to the litigation, not by a third party such as an insurer. The court explained that, while subrogation allows an insurer to pursue claims in the insured’s name, the insurer does not become a party to the proceedings.
The insurer could, therefore, not make discovery on behalf of its insured nor act as the litigant. The court ordered the respondent to comply with the discovery notice within ten days, failing which the applicant could apply to have the respondent’s claim dismissed.
The judgment serves as a reminder that procedural compliance is essential, and that insurers must respect the formal roles of parties in the litigation, even when acting under subrogation. Subrogation gives the insurer the procedural right to control the proceedings and not the right to become the party to the proceeding.