Plaintiff Ordered To Produce Past Settlement Details in Potential Indivisible Injury Claim
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to disclose details of previous settlements in a personal injury prosecution.
In last week’s case (Dholliwar v. Yu) the Plaintiff was injured in three collisions. The Plaintiff settled his first two claims. In the third claim the Defendants requested details of the previous settlements and the Plaintiff did not produce these arguing the details were privileged. The Court found the claims had overlapping and possibly indivisible injury claims and thus the details needed to be produced. In reaching this decision Master Scarth reasoned as follows:
[10] The cases set out the following principles which are applicable to this application:
a. The public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged:Middelkamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (C.A.).
b. A final settlement agreement is covered under the Middelkamp blanket protection for settlement communications: B.C. Children’s Hospital v. Air Products Canada Ltd., 2003 BCCA 177, confirming a general policy of non-production of all documentation relating to settlement negotiations.
c. To establish an exception to settlement privilege, the applicant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. Relevance alone is not sufficient to override the settlement privilege. See Middelkamp; Dos Santos v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, para. 21.
d. An exception to settlement privilege may be necessary to prevent injustice through excessive compensation to the plaintiff: Dos Santos, para. 29, citing Pete…
[26] It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298, but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial.
[27] In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach.
[28] To the extent that disclosure at this time raises concerns with respect to the fettering of the trial judge’s determination of damages, the parties may wish to agree that, as in Gnitrow Ltd, v. Cape plc, [2000] 3 All E.R. 763, the terms of the settlements not be disclosed to the trial judge until a determination of the damages payable by the defendant has been made: at para. 21.
[29] In the circumstances, I conclude that it is appropriate to make an order for production of the documents which set out the terms of the settlements of the plaintiff’s claims arising from the two previous accidents.
[30] The defendants are entitled to their costs in the cause.