Thus, the Court of Appeal unanimously held that the inclusion of the previous communications in the settlement agreement stipulated that no privilege could be maintained. Arnold LJ`s explanatory memorandum in paragraphs 16 to 18 was as follows: we also examine recent case law concerning settlement agreements, in which an undertaking might be required to disclose documents from a separate undertaking and how one can try to protect the documents against being shown to the other party in the course of a dispute. The USDC for the Eastern District of Tennessee recently ruled that sixth circuit settlement privilege does not prevent a defendant from obtaining the settlement agreement between a plaintiff and a conciliation defendant. Kelley v. Apria Healthcare, Inc., 2016 WL 737919 (E.D. Tenn. Feb. 23, 2016). You can view the decision here.
In the subsequent appeal proceedings, BGC argued that the settlement agreement concerned only the previous communications and that, as such, the privilege had not been waived those communications. Although this argument is not set out in detail in the judgment, it is clear that not all documents mentioned in a treaty are included in it and that it is possible (in the strict sense of the term) to refer to prejudiced communications without thereby renouncing privileges. Nevertheless, there is a good reason why trial lawyers are cautious: the moment one traces, accepts or counts the content of a privileged communication in an open document, one takes a risk. As a result, a settlement agreement was entered into between BGC and the broker. The settlement agreement is important: the Master rejected BGC`s claim on procedural privilege for two reasons: first, that the settlement agreement was a communication between the opposing parties; second, that the overarching objective of including the evidenced communications in the settlement agreement was to `benchmark or monitor` the agreement and not to allow BGC to gather evidence of the dispute. The judge upheld Master`s decision in the first reason and therefore did not need to consider the second reason. As a first step, the Court of Appeal considered the second ground (on which the respondent`s disclosure was based) and noted that it presented a simpler response to BGC`s application than the first ground. The Court of Appeal found that there was a glaring problem with BGC`s claim to trial privilege. Communications without prejudice have not been included in the settlement agreement in order to obtain information or advice regarding the management of disputes. Although the court accepted that the original purpose of drafting these communications may have been to gather evidence, this is not the reason why they were included in the settlement agreement.
This is where their goal was to guarantee BGC. This objective was different from any original objective of taking evidence and could not be transferred to a higher dominant litigation. BGC`s claim to procedural privilege was thus thwarted.. . . .