IN BRIEF - TAKE CARE WHEN DRAFTING NON-ASSISTANCE CLAUSES
Can a non-assistance clause in a settlement agreement prohibit
witnesses from voluntarily assisting other litigants to a
proceeding? The recent decision in
Commonwealth of Australia v Sanofi (formerly
Sanofi-Aventis) [2017] FCA 382 has thrown doubt on to the
enforceability of such clauses, particularly in circumstances where
the effect of the clause would restrict witnesses from discussing
evidentiary matters with the remaining parties to the
proceeding.
In multi-party disputes, it is common for a number of parties to
settle their dispute prior to trial. Clauses restricting the
settling party from assisting other parties to the proceeding are
often included in settlement deeds. However, in Commonwealth v
Sanofi, the Federal Court of Australia held that a clause
contained in a settlement agreement, which prohibited witnesses
from assisting another litigant to the proceedings, was
unenforceable on the basis
