A 2026 High Court judgment confirmed that an insurer exercising rights of subrogation have status as a party in pending litigation and may not depose to a discovery affidavit on behalf of its insured unless it has been formally joined to the proceedings.
The judgment arose from a dispute concerning discovery in an action involving both a claim and counterclaim following a motor vehicle collision. The opposing party failed to deliver a discovery affidavit within the prescribed period. Instead, an unsigned affidavit was later served, purportedly deposed to by a legal specialist employed by the defendant’s insurer.
The insurer argued that it had indemnified the defendant and was subrogated to the defendant’s rights. The affidavit stated that the insurer did not have possession or control of documents beyond those listed and raised objections to certain categories of discovery. The applicant rejected the affidavit as defective and applied to compel proper discovery, contending that the affidavit was inadmissible because it was not deposed to by a party to the litigation but by a third-party insurer that had not been cited nor joined.
The court agreed. It emphasised that discovery is a sworn procedural obligation imposed on a party to the proceedings. A discovery affidavit is not a mere formality; it is a statement made under oath that binds the litigant and carries consequences for non-compliance, including adverse cost orders and, in appropriate cases, the striking out of claims or defences.
While the doctrine of subrogation entitles an insurer to step into the shoes of its insured for purposes of enforcing substantive rights, it does not, without more, confer procedural standing in existing litigation. Subrogation regulates the internal relationship between insurer and insured and does not dispense with the procedural requirements governing joinder, substitution or intervention.
The court distinguished authorities recognising an insurer’s right to pursue recovery following indemnification, noting that those cases concern substantive rights against third parties and do not permit an insurer, acting in its own name, to perform procedural acts reserved for litigants of record. Allowing a non-party to depose to a discovery affidavit would undermine procedural accountability and create uncertainty for opposing parties.
The defective discovery affidavit was set aside, and the defendant was ordered to deliver a proper discovery affidavit, personally deposed to.