Litigation arose from the construction of offshore oil rigs and onshore processing facilities. Sable Offshore Energy settled with three of the 12 defendants under Pierringer agreements (so-called after a 1963 Wisconsin case which recognised that one could settle with some but not all defendants in multi-party litigation, leaving the non-settling defendants potentially on the hook only for the loss they actually caused). The terms of the Sable agreements were disclosed to Ameron and Amercoat, except for the amounts agreed to. Ameron and Amercoat then sought disclosure of the settlement amounts, which the Nova Scotia trial judge refused to do, on the grounds that settlement privilege trumped disclosure. The NS Court of Appeal reversed.
The SCC has allowed the appeal, upholding the underlying policy in promoting the settlement of disputes. Abella J, for the court, gives an overview of the leading authorities. In her view, there was no clear reason to displace the privilege in the interests of justice to Ameron and Amercoat; not knowing the dollar figures of the settlements did not materially affect their ability to know and present their case, even if having the amounts would help them 'revise their estimate of how much time they want to invest in the case'. That did not rise to a sufficient level of importance to warrant displacing the privilege. Nor did the argument that they would be more likely to settle if they knew what the other defendants had accepted; a defendant will be unlikely to settle if it knows the amount is disclosable to other defendants, and 'someone has to go first'.
Not a stunning judgment, but a clear statement of the basic principles: Sable Offshore Energy Inc v Ameron Int'l Corp, 2013 SCC 37.
http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/13138/index.do
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