(Court of Appeal of New Zealand) Lawyers had acted for a claimant in mediation proceedings with a defendant and had signed a comprehensive confidentiality agreement. The mediation resulted in a settlement. They were then instructed by another claimant in respect of a very similar dispute against the same defendant.
Held: There was a risk that the lawyers would make use of confidential information acquired in the earlier proceedings in the subsequent action, and they should not be permitted to continue to act.
Blanchard J said: ‘Certainly a party seeking the exclusion of the other side’s legal adviser must first show that there is an appearance of risk, going beyond the remote or merely fanciful, of conscious or unconscious use or disclosure by the lawyer of something relevant to the current dispute of which the lawyer gained knowledge as a result of participation in an earlier mediation. But if that threshold is reached, it is then for the lawyer to demonstrate that in fact no such risks exists or that, if it does, no damage, other than de minimis, could possibly result from use or disclosure.’
Judges:
Blanchard J
Citations:
[2001] 3 NZLR 343
Jurisdiction:
England and Wales
Cited by:
Cited – British Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others CA 6-Jun-2008
The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also . .
Lists of cited by and citing cases may be incomplete.
Commonwealth, Litigation Practice, Legal Professions
Updated: 10 May 2022; Ref: scu.268776