The Colburn case was a class action lawsuit involving allegations of price agreement with respect to credit card fees paid by merchants. Some defendants have reached an agreement and the prosecution continues against the remaining defendants. The defendants announced the existence of a JDA and toll agreements, and the applicant requested a court decision requiring the establishment of all agreements. To maintain the privilege of communicating with others, a party must generally demonstrate three things: that the communication was made in accordance with a common defense, that the communication was made to further the objectives of that common defense, and that the privilege was not otherwise removed (i.e., the common defenders do not share the communication beyond their core group). Of course, not all cases in which clients and their lawyers wish to exchange information with others and their lawyers are related to litigation. To address this possibility, many courts have extended the principles of common defence privilege to the non-contentious context. If such differences are not addressed, they may jeopardize all parties to the Joint Defence Agreement. Therefore, an important provision in any common defense agreement is to deal accurately with what happens when a party decides to terminate or abandon it. A party seeking to assert common defence privilege must prove: “[22] Bilfinger does not, in my view, represent the applicant`s broad and general argument. The bilfiinger decision and subsequent cases were characterized by the general need to ensure that the judicial proceedings were not affected by agreements between or between the defendants, as well as by the fear that the agreement at issue in the Bilfiinger case would alter the contradictory direction of the judicial landscape.

Joint defence and common interest agreements can be effective instruments for promoting customer interests and reducing costs. The key is to do them correctly so that they do not themselves become the basis of disputes. Since an implied attorney-client relationship is generally determined on the basis of the potential client`s reasonable perspective, a well-developed joint defense agreement can confirm that the parties agree that there was no intentional attorney-client relationship with parties for any purpose. The burden of common defence is the same as the burden of proof of solicitor-counsel privilege. The party asserting the common defence contract always bears the burden of proving its existence by determining each element of legal privilege. [9] Similarly, the party invoking privilege, both in common defence agreements and elsewhere, bears the burden of proof of the applicability of the privilege. [3] The concepts and predicates in favour of an enforceable agreement of common interest are essentially similar to those of the common defence agreement. They include sufficient real common interests to justify a derogation from the rules on waiver of solicitor-client privilege. “As a general rule, no written agreement is required to assert the common privilege of the defence.” [8] While “privileges must be interpreted restrictively and extensions should be extended with caution,” the courts have held that a common oral defense agreement may be valid. [3] Transactions, litigation and commercial disputes often involve several clients with competing interests, but with different lawyers.

Often, clients and their lawyers want to communicate with other clients and lawyers without the risk of waiving existing privileges or immunities. . . .