57 Privilege 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—

(a)

was intended to be confidential; and

(b)

was made in connection with an attempt to settle or mediate the dispute between the persons.

(2)

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.

(2A)

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.

(2B)

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—

(a)

the disclosure is necessary for a subsequent prosecution for perjury; or

(b)

the disclosure is necessary to clarify the terms of an agreement reached, if the terms are later disputed or are ambiguous; or

(c)

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.

(3)

This section does not apply to—

(a)

the terms of an agreement settling the dispute; or

(b)

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

(c)

the use in a proceeding, solely for the purposes of an award of costs, of a written offer that—

(i)

is expressly stated to be without prejudice except as to costs; and

(ii)

relates to an issue in the proceeding; or

(d)

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

Section 57 heading: amended, on 8 January 2017, by section 21(1) of the Evidence Amendment Act 2016 (2016 No 44).

Section 57(2A): inserted, on 8 January 2017, by section 21(2) of the Evidence Amendment Act 2016 (2016 No 44).

Section 57(2B): inserted, on 8 January 2017, by section 21(2) of the Evidence Amendment Act 2016 (2016 No 44).

Section 57(3)(c)(ii): amended, on 8 January 2017, by section 21(3) of the Evidence Amendment Act 2016 (2016 No 44).

Section 57(3)(d): inserted, on 8 January 2017, by section 21(4) of the Evidence Amendment Act 2016 (2016 No 44).