A question.

When settling a matter out of court, if confidentiality is important to you, and your standard form of release contains a confidentiality clause, is it enough to simply agree or assume that the parties will sign your standard form of release?

It would seem that the answer to that question is no.

We refer to the 2021 Nova Scotia Supreme Court decision in McMillan Estate v. Booth,
2021 NSSC 284

In McMillan, the parties through counsel agreed to a settlement of their dispute. There was no express agreement on the inclusion of a confidentiality clause. Counsel for the Defendant then forwarded a form of Final Release to counsel for the Plaintiff, which form included a confidentiality clause. Counsel for the Plaintiff responded that there had been no negotiated agreement to provide for confidentiality or non-disclosure of the settlement or any terms of a release for that matter and moved for an order approving the settlement on the terms that were agreed.

In so moving, plaintiff counsel argued that a confidentiality or non-disclosure clause is not a standard or implied term of a final release. Defendant’s counsel argued the contrary position. The Court concluded that there was no express or implied condition that the release contain a confidentiality clause and that none was negotiated when the settlement was reached. The Court added this at paragraph 53 of its decision:

This matter evidences that even senior counsel can fall into the trap of presumption. Parties negotiating settlements … whether at a JSC, a mediation or directly, should be careful to clearly state any terms and conditions of settlement, including … specific terms to be included in any consent orders or releases that are required to conclude the settlement

Speaking for ourselves we can say this. Any settlement reached in any matter that we are involved in as your insurance program will require our standard form of release which includes, amongst other terms, a confidentiality and non-disclosure clause.

LIANSwers v83, September 2023