Redress scheme standardised agreement (FOI)

Request

The Redress Scheme application contains the following criteria:

"If you want to accept the redress payment you will need to sign an agreement confirming that:

 • you accept the payment is in full and final settlement of your application. This means you cannot subsequently go to Court to seek other compensation for the abuse or harm you suffered,

 • you understand that the amount of the payment is private and confidential. This means you cannot talk publicly about the amount of the payment. The Government of Jersey is also required to keep details of the payment private and confidential."

Jersey Redress Scheme

A

Please kindly provide a standardised copy of the agreement referred to here.

B

Please also provide an explanation as to why it has been deemed necessary for claimants to agree to non-disclosure.

Response

A

The “standardised” agreement has been developed by lawyers on behalf of the Redress Scheme. Each party entering into the agreement has a right to negotiate its terms, therefore the terms of the “standardised” agreement are covered by legal professional privilege as it was created with the intention of seeking advice or in contemplation of legal proceedings. The Redress Scheme is a form of alternative dispute resolution.

Lawyers have used their skill and judgment to prepare the “standardised” agreement. A disclosure under the Freedom of Information (Jersey) Law 2011 (the “FOI Law”) would release the “standardised” agreement into the public domain before any terms are negotiated with the relevant parties. This would have the effect of waiving legal professional privilege and the terms of the “standardised” agreement would no longer be confidential.

The disclosure of the “standardised” agreement to a limited audience (applicants to the Redress Scheme and their representatives) is made on a confidential basis, with restrictions on the further dissemination of the agreement. This ensures the terms of the agreement would remain confidential from the world at large, retaining its legally privileged status, now and in the future. The disclosure of the “standardised” agreement is therefore considered exempt under Article 32 (Legal Professional Privilege) of the FOI Law.

Article 32 is a qualified exemption, which means that the Scheduled Public Authority must consider whether the public interest in maintaining the Article 32 exemption outweighs the public interest in disclosure. The public interest in disclosing information when this article is being applied must weigh particularly heavily in favour of disclosure in order to outweigh the inherent right to privilege. The right to privilege inherent in this exemption will always be strong due to the importance of the principle behind legal professional privilege: safeguarding openness in all communications between client and lawyer to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice. At least equally strong countervailing considerations would need to be present to override that inbuilt right to privilege. Some clear, compelling and specific justification for disclosure must be shown to outweigh the obvious interest in protecting communications between lawyer and client, which the client supposes to be confidential.

The Redress Scheme only recently went live, and the number of applications is not yet known. Opportunity needs to be given to all parties to enter into this process on a confidential basis. Whilst disclosure of the “standardised” agreement may meet objectives of transparency and openness, it would be to the detriment of those future parties who would assume that dealings of such a sensitive nature would be kept confidential, including terms upon which they settle. Disclosure may even inhibit individuals from making an application in the first place. Therefore, it is not considered that there are strong countervailing considerations that override the inbuilt right to privilege and Article 32 is considered to be engaged.

B

The FOI Law gives the public the right to request information held in recorded form. A Scheduled Public Authority is obliged to provide that information unless an exemption applies. The information requested does not exist in a recorded form.

However, it is noted that detail is included in the response to question A) as to the requirements of confidentiality in relation to both “standardised” and negotiated agreements.

We think it may also be helpful to out why the amount of the redress payment is private and confidential.

The amount of the redress payment is private and confidential for a number of reasons including:

• settlements under the Scheme are determined by the facts of each claim, those facts are private to the individual claimant

• if the terms of settlements were in the public domain false expectations could be raised amongst other applicants to the scheme and/or dissatisfaction if they have settled their claim for less. Each claim is individual, and the particular facts of other applications may be very different

• if terms of settlements were in the public domain, it might encourage false or exaggerated applications which would be inherently unfair to those who suffered harm or abuse

• some applicants may be vulnerable to exploitation and may be pressured to disclose their settlement. The confidentiality of the terms of settlement allows an applicant to say that they cannot disclose those terms should people ask

• confidentiality clauses are routine and standard in personal injury claims settlement agreements (for the above reasons).

The Government of Jersey will report at the conclusion of the scheme on the total amounts paid in compensation and the total amounts paid to Claimants’ lawyers.

Article applied

Article 32 Legal professional privilege

Information is qualified exempt information if it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.