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02 Sep 2020

Lawyer’s letter admitted as evidence

by Erika Hachey
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Fraser v Runighan, 2020 PECA 5

Following a motion at the Prince Edward Island Court of Appeal, the solicitors for Fraser and Runighan were negotiating costs. An offer to settle was sent from Runighan to Fraser, and a letter followed from Runighan. The letter did not mention the offer to settle, and stated that Runighan intended to include the letter in their submissions to the Court of Appeal.

However, when submissions were made, Runighan did not include the letter and asserted that it was protected by settlement privilege.

The Court of Appeal reviewed the common law for settlement privilege, stating that 1) the litigious dispute must be in existence or within contemplation; 2) the communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed (such as using ‘without prejudice’), and 3) the purpose of the communication must be to attempt to effect a settlement.

The Court of Appeal stated that the words ‘without prejudice’ need not be used in the letter, and that the intent of the parties was most important. The intent of the parties must be to negotiate settlement, and that communication is inadmissible.

The Court of Appeal stated that the letter did not reference the earlier settlement offer, therefore the settlement offer remained confidential, and secondly, Runighan stated the letter was intended to be included on her submissions to the Court of Appeal. The Court of Appeal allowed the letter to be entered as evidence.

You can read Fraser v Runighan in its entirety here.