A plaintiff may, or may not, have to disclose settlement agreements made with other parties.
The Plaintiff entered into a “BC Ferries” settlement with one Defendant. A remaining Defendant sought disclosure of the settlement amount. The Court did not order disclosure, but held that the Defendant could amend its pleading to include that it was entitled to have the settlement amount taken into account for the purposes of determining what, if any, portion of damages would be payable by that remaining Defendant.
This case was originally summarized by Sarah Swan and originally edited by David Pilley of Harper Grey LLP.
Here is the case citation: Philips v. Stratton et al. [2007] B.C.J. No. 1940
Here is a link to the decision.
The Plaintiff was seriously injured in a motor vehicle accident. The Plaintiff entered into a “BC Ferries” settlement with one Defendant. The Plaintiff subsequently amended his statement of claim in accordance with B.C. Ferries Corporation v. T&N plc, [1995] B.C.J. No. 2116. The Insurance Corporation of British Columbia (“ICBC”) argued that it should have access to the settlement amount to assist with negotiations and to prevent double recovery. The Plaintiff argued the amount should only be disclosed after judgment and the apportionment of liability.
The Court found that settlements are generally confidential, but there are exceptions to this general rule. The Court found that ICBC had failed to meet the requirements of relevance and necessity to bring itself within this rule, and dismissed the application on the understanding that there was no objection to the disclosure of the amount after judgment and the apportionment of liability
Interesting decision. In Florida where I practice even where there is a confdentiality provision in the release, a settling party must disclose the terms of the settlement to the remaining party defendants. Of course, those remaining parties are still duty bound to maintain the confidentiality agreed upon by those who have settled.
This case used what is called a BC Ferries Release in British Columbia. Essentially the plaintiff foregoes any money that he is entitled to, but the court will assess liabilility against the released defendant and deduct the released defendant's proportion of damages from the award. The plaintiff bears the risk/reard of any difference between the remaining judgement and the settlement.