Seaspan International Ltd. et al. v. The Ship “Ewa”

In Admiralty Practice, Discovery on (Updated )

This was a motion by the Defendant to compel the re-attendance of various discovery witnesses to answer questions which had been refused at examinations for discovery. The questions related generally to claims and settlement agreements as between the Plaintiffs and sought the production of any settlement agreements. As a preliminary point the Prothonotary considered whether the scope of production of documents under the Federal Court Rules, 1998 was narrower than under the previous rules. Relying on Smithkline Beecham Animal Health Inc. v The Queen [2002] 4 C.T.C. 93, he held that the “train of inquiry” test under the old rules was substantially the same as the current test requiring production of documents that a party intends to rely on or that tends to adversely affect the party’s case or support another party’s case. With respect to the substance of the motion the Prothonotary referred to various authorities and concluded that settlement agreements are, for the most part, privileged. However, provisions as to release or not to sue or reservation of rights ought to be disclosed and evidentiary arrangements in those agreements might also be required to be disclosed at or shortly before trial.