Here are five principles endorsed by the Supreme Court of Canada in its June 21st settlement privilege decision (quoted loosely from the decision itself):
- Settlement privilege is a class privilege associated with a prima facie presumption of inadmissibility; exceptions will be found “when the justice of the case requires it.”
- Settlement privilege extends beyond documents and communications expressly designated to be “without prejudice”; what matters instead is the intent of the parties to settle the action.
- Settlement privilege protects documents and communications from production to other parties to the negotiation and to strangers, and extends as well to admissibility, and whether or not a settlement is reached.
- Settlement privilege extends to the negotiated settlement itself.
- To come within an exception to settlement privilege, a party must show that, on balance, “a competing public interest outweighs the public interest in encouraging settlement.”
The Court held that, in the circumstances before it, there was an insufficient interest favouring the disclosure of settlement amounts to two non-settling defendants in a multi-party dispute.