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Evidence Act 2006

Admissibility rules, privilege, and confidentiality - Privilege and confidentiality - Privilege

57: Privilege for settlement negotiations, mediation, or plea discussions

You could also call this:

"Keeping settlement talks private"

Illustration for Evidence Act 2006

When you are in a dispute, you might try to settle it without going to court. You can talk to the other person or have a mediator help you. If you say something or write something to try to settle the dispute, that is usually private. The law says you have a privilege to keep these communications private. This means you do not have to tell anyone what you said or wrote. You also have a privilege to keep private any documents you prepared to try to settle the dispute.

If you are in a criminal case, you can have private discussions with the other side to try to reach a plea agreement. These discussions are also private. But a court can order you to disclose what you said or wrote if it is necessary for a fair trial or to prevent injustice. The court can also order disclosure if someone is accused of lying under oath or if the terms of an agreement are unclear.

There are some exceptions to this privilege. If you reach a settlement, the terms of that settlement are not private. The court can also use written offers to settle a case when deciding who should pay the costs of the trial. In some cases, the court might decide that justice requires a communication or document to be disclosed, even if it was made in private.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393664.

Topics:
Crime and justice > Courts and legal help
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Part 2Admissibility rules, privilege, and confidentiality
Privilege and confidentiality: Privilege

57Privilege for settlement negotiations, mediation, or plea discussions

  1. A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to the dispute if the communication—

  2. was intended to be confidential; and
    1. was made in connection with an attempt to settle or mediate the dispute between the persons.

      1. A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of a confidential document that the person has prepared, or caused to be prepared, in connection with an attempt to mediate the dispute or to negotiate a settlement of the dispute.

      2. A person who is a party to a criminal proceeding has a privilege in respect of any communication or document made or prepared in connection with plea discussions in the proceeding.

      3. However, the court may order the disclosure of the whole or any part of a communication or document privileged under subsection (2A) if the court considers that—

      4. the disclosure is necessary for a subsequent prosecution for perjury; or
        1. the disclosure is necessary to clarify the terms of an agreement reached, if the terms are later disputed or are ambiguous; or
          1. after due consideration of the importance of the privilege and of the rights of a defendant in a criminal proceeding, it would be contrary to justice not to disclose the communication or document or part of it.

            1. This section does not apply to—

            2. the terms of an agreement settling the dispute; or
              1. evidence necessary to prove the existence of such an agreement in a proceeding in which the conclusion of such an agreement is in issue; or
                1. the use in a proceeding, solely for the purposes of an award of costs, of a written offer that—
                  1. is expressly stated to be without prejudice except as to costs; and
                    1. relates to an issue in the proceeding; or
                    2. the use in a proceeding of a communication or document made or prepared in connection with any settlement negotiations or mediation if the court considers that, in the interests of justice, the need for the communication or document to be disclosed in the proceeding outweighs the need for the privilege, taking into account the particular nature and benefit of the settlement negotiations or mediation.

                      Compare
                      • 1908 No 89 Schedule 2 r 48G
                      Notes
                      • Section 57 heading: amended, on , by section 21(1) of the Evidence Amendment Act 2016 (2016 No 44).
                      • Section 57(2A): inserted, on , by section 21(2) of the Evidence Amendment Act 2016 (2016 No 44).
                      • Section 57(2B): inserted, on , by section 21(2) of the Evidence Amendment Act 2016 (2016 No 44).
                      • Section 57(3)(c)(ii): amended, on , by section 21(3) of the Evidence Amendment Act 2016 (2016 No 44).
                      • Section 57(3)(d): inserted, on , by section 21(4) of the Evidence Amendment Act 2016 (2016 No 44).