Thursday, November 30

Further erosion of confidentiality

This post is for blah...blah's New Zealand readers.

Last month in the High Court at Auckland, Wicks v Waitakere City Council HC AK Civ 2005-404-5146 (unreported decision by Hansen J) made further inroads into the confidentiality of without prejudice settlement discussions, this time at a Judicial Settlement Conference.

"[1] Following a judicial settlement conference, the plaintiff and defendant entered into a settlement agreement. In this proceeding the plaintiff seeks a declaration as to the meaning of the agreement. In the event that the meaning he asserts does not prevail, he advances alternative causes of action under the Contractual Mistakes Act 1977, based on representation estoppel, for rectification, for a declaration that no agreement was reached and of non est factum.
[2] I have been asked to determine, before the substantive hearing begins, whether the plaintiff can introduce evidence of "without prejudice" negotiations and communications, a deed of settlement between the defendant and another party and of what took place at the judicial settlement conference..."

And the answer is....yes they can!

..."Relevant statements made at the judicial settlement conference may be referred to for the limited purposes referred to in this judgment"

Email me if you want a copy.

[Add this to the recent Employment Court decision of James Jesudhass v Just Hotel that allowed evidence to be given of certain matters that took place at an employment mediation and you will be forgiven for thinking there is a trend here]

1 comment:

Colm Brannigan said...

Here is a recent case from Ontario which although not exactly on point, gives you an idea of what is happening here. The Divisional Court ruled that a mediator cannot be compelled to testify regarding the terms of a settlement agreement reached in mediation based, as far as I see it on the Wigmore privilege test. See the decision at It was released March 9th, 2006.

Sláinte (Health),


Colm Brannigan, C. Med.