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Archive for August, 2008

But that is confidential!

The property world relies on information of deals done in the market when assessing price and rental levels.  However, some parties are anxious to keep such information out of the public arena and enter a confidentiality agreement.  Problems arise, however, when a party to litigation wishes to disclose details of all deals done, whether on a confidential basis or not.

The civil court procedure rules state that facts presented in a case must be proven by the presentation of evidence.  Further, the rules governing disclosure of documents state that a party to litigation is to disclose to the courts and to other parties documents upon which it relies as evidence and documents which adversely affect its case or another party’s case or which support another party’s case.  To prove the market price or rental for a property, therefore, a party to litigation may have to disclose details of a deal shrouded by a confidentiality agreement.

The courts have declared that, generally speaking, confidentiality is not a bar to disclosure of documents but will only compel such disclosure if it considers it necessary for the fair disposal of a case.

Disclosure can also cause difficulties if parties to litigation enter into negotiations to settle their dispute and one party wants to keep the details of those negotiations out of the court arena and does not want admissions made in those negotiations to come before the judge.  In such cases, any documents created with the aim of reaching a settlement will often be marked “without prejudice” which such label will protect all negotiations genuinely aimed at settlement from being given in evidence.

If you want to hear more about disclosure, why not ask Hatherleigh Training to help you?