Walker v Forbes

[2017] NZHC 2711

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2012-409-2486 [2017] NZHC 2711

BETWEEN

ROBERT BRUCE WALKER

First Plaintiff

PROPERTY VENTURES LIMITED
(In Receivership and in liquidation)

FIVE MILE HOLDINGS LIMITED
Third Plaintiff

AND

AUSTIN JOHN FORBES

First Defendant

Hearing:

1 November 2017

Appearances:

J B M Smith QC and K Francis for plaintiffs W J Palmer for First Defendant

Second Defendant in person

R Raymond QC for Third Defendant M J Wallace for Fifth Defendant

J Moss for Sixth Defendant K Harkess for Third Party F A Darlow for PWC

Judgment:

7 November 2017

JUDGMENT OF LANG J

[re application for order requiring disclosure of terms of settlement between PWC and the plaintiffs]

This judgment was delivered by me on 7 November 2017 at 12 noon pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

WALKER v FORBES [2017] NZHC 2711 [7 November 2017]

Date……………

ALISTER SPEDDING JOHNSTON

Second Defendant

GORDON LEWIS HANSEN

Third Defendant

ADOLF DE ROOS

Fifth Defendant

DANIEL JAMES GODDEN

Sixth Defendant

PWC (Sued as a firm) Seventh Defendant

VERO LIABILITY INSURANCE LIMITED

Third Party

[1]        The first defendant has applied for an order requiring the plaintiffs to provide him with the terms of the settlement reached between the plaintiffs and the seventh defendant, PricewaterhouseCoopers (PWC).

[2]        The plaintiffs accept that the defendants are entitled to be provided with the amount that PWC agreed to pay pursuant to the settlement and the date on which payment was made. PWC has also given its consent to that occurring on the terms suggested in a memorandum filed by counsel for the plaintiffs prior to yesterday’s hearing.

[3]        Following  discussions  that  occurred  between  counsel  at  the  hearing  on  1 November, I am now in a position to make directions in relation to the disclosure of the terms of the settlement. PWC has now had three days within which to file a memorandum responding to issues not covered in the memorandum filed prior to the hearing but has not filed any memorandum.

[4]        An issue has arisen since the hearing because counsel for the plaintiffs has indicated he proposes to disclose a redacted version of the settlement agreement to counsel for the defendants and third party. This is designed to protect information that is commercially sensitive. He confirms that if the defendants are not happy with this the plaintiffs will provide the Court with an unredacted version so that it can decide whether or not disclosure should be made of unredacted material.

[5]        Counsel for the first defendant filed a memorandum last evening objecting to the plaintiffs’ proposal. He submits that the plaintiffs’ position is adequately protected by the fact that disclosure will only be made to counsel in the first instance, and that the Court cannot realistically make an informed decision about the relevance of unredacted material to the defendants. I have now read the memorandum filed by counsel for the plaintiffs in response. This essentially reiterates the arguments made in the plaintiffs’ earlier memorandum.

[6]           I uphold the submissions for the first defendant on this point. I do not consider that disclosure to counsel alone is likely to result in undue dissemination of commercially sensitive information. Furthermore, I accept the submission that the Court is not realistically in a position to determine what relevance redacted material may have from the perspective of the defendants. For those reasons I am satisfied that disclosure of the unredacted agreement should be made, but only to counsel for the defendants and the third party in the first instance.

[7]The Court now makes the following directions:

1.The plaintiffs will disclose the sum paid by PWC to settle the claim against it and the date upon which the payment was made. That information will be provided to counsel for the defendants and the third party, who may disclose it to the defendants and their expert witnesses. Disclosure to all parties, including counsel, will only be made upon receipt by the plaintiffs of a written undertaking to the Court, the plaintiffs and PWC that the persons who receive the information will keep it confidential and not disclose it to any other person for any reason whatsoever. The undertaking is to be prepared by the plaintiffs’ solicitors and is expected to be available by Friday 3 November 2017.

2.In addition, the plaintiffs will disclose the same information to a nominated representative of the third party, Vero Liability Insurance, and any other insurer of a defendant. Those parties will also need to provide a written undertaking on the same terms to the plaintiffs before they will be entitled to receive the information. Those parties have leave to return to the Court to seek leave to disseminate the information to other nominated persons within their respective organisations in the event that they cannot reach agreement with the plaintiffs regarding that issue.

3.In reliance on the same undertakings as to confidentiality, counsel for the plaintiffs will provide counsel for the defendants and the third party with an unredacted copy of the settlement agreement between PWC and

the plaintiffs. If those counsel wish to disseminate the terms of the settlement agreement to their clients or respective experts (other than the amount and date of payment of the settlement sum), they have leave to return to the Court for resolution of that issue if they cannot reach agreement with the plaintiffs.

[8]        Counsel for the liquidators has intimated that the liquidators will advise counsel for the defendants and the third party of the manner in which any funds received by them as a result of the settlement with PWC have been applied. Similarly, the liquidators are likely to provide counsel for the defendants and the third party with copies of any contractual arrangements that may be entered into between the liquidators and the litigation funder in accordance with the undertakings referred to by the Supreme Court in PricewaterhouseCoopers v Walker.1 Counsel have leave to raise this issue with the Court by memorandum should any issue arise in relation to it.

[9]        The extent to which details of the settlement may be disclosed to others or published during or following the trial will be determined at trial, pending which no publication or dissemination of the details of the settlement agreement will be permitted, beyond what is expressly permitted by the undertakings, in the absence of further order of the Court.

[10]      The defendant’ briefs are currently due to be served on 20 November 2017. There remains a concern that the plaintiffs will not be able to provide the information referred to in this judgment in sufficient time to enable the defendants’ expert witnesses to incorporate it in their briefs of evidence. Should any issue arise in this regard the defendants have leave to seek an extension of time within which to serve those briefs.

[11]      All parties have leave generally to ask the Registrar to arrange a telephone conference before me should any issue arise regarding the scope of these directions or their implementation.

1      PricewaterhouseCoopers v Walker [2017] NZSC 151 at [49] and [90].

Lang J