Is a plaintiff's settlement agreement with other defendants relevant for disclosure purposes?

In Proskow v. Schnell, [2000] A.J. No. 445, 2000 ABQB 211, the trial was proceeding against four separate defendants for separate incidents. Originally there had been several other actions that were to be tried at the same time, however those were settled. The defendants applied for disclosure of details of the settlement agreements made by the plaintiff with other defendants in order to avoid an overlap of damages. The plaintiffs submitted that the agreements arose from separate incidents and thus were irrelevant to the litigation involving the applicants. Perras J. allowed the application in part. In brief reasons, he held that the agreements per se were relevant for disclosure purposes. The settlement negotiations and agreements were not yet relevant, and whether or not the agreements were relevant for trial purposes was a matter for the trial judge.

In Morrissey v. Morrissey, [2002] N.J. No. 123 (S.C.T.D.), aff’d [2002] N.J. No. 260, 2002 NFCA 58 the defendant applied for production of a letter written by counsel for the plaintiff to a claims adjuster on a “without prejudice” basis in a previous action which settled. The defendant argued that the letter was necessary because the plaintiff could not recall symptoms which she would have experienced with respect to the previous action, and one of the primary physicians treating her at the time was now deceased. Thompson J. allowed the application in part. Portions of the letter relating to the nature of the plaintiff’s injury were ordered disclosed as it was possible that the document could relate to the current action to the extent that it contained facts relating to her health, which could bear on the assessment of her injuries and the quantum of damages. Thompson J. held that the document was privileged notwithstanding the settlement of the previous action, and limited disclosure was necessary which would not compromise the overall privilege of the document. It could contain facts, which, but for the circumstances, would have been available from the plaintiff herself.