The court had ordered preparation of a joint statement by the parties expert witnesses with a view to encouraging mediation. The claimant obtained an order that the statement was privileged, and could not be used later in the proceedings.
Held: The defendant’s appeal succeeded. Though ‘with some exceptions not relevant to this appeal’, what goes on in the course of mediation is privileged, so that it cannot be referred to or relied on in subsequent court proceedings if the mediation is unsuccessful.’ The fact that the document had been used later to encourage and be part of mediation proceedings did not make it subject to privilege.
May LJ said: ‘The court will always encourage mediation in an appropriate case. It is well-known and uncontentious in this case that mediation takes the form of assisted ‘without prejudice’ negotiation and that, with some exceptions not relevant to this appeal, what goes on in the course of mediation is privileged, so that it cannot be referred to or relied on in subsequent court proceedings if the mediation is unsuccessful. In the present case the parties reinforced this by including a provision in their mediation agreement that they would ‘keep confidential all information, whether oral or written or otherwise produced for or at the mediation’. This cannot of course be taken absolutely literally, since it obviously would not apply to documents obviously produced for other purposes which were needed for and produced at the mediation; for example, their building contract or the antecedent pleadings in the proceedings. There was also a note in the agreement to the effect that evidence otherwise admissible would not become inadmissible simply because it was used in mediation. But the general intent of the provision is clear and it accords with the generally understood ‘without prejudice’ nature of mediation.’
Judges:
May, Smith LJJ
Citations:
[2006] EWCA Civ 1866, Times 14-Feb-2007
Links:
Statutes:
Civil Procedure Rules 35.12(3)
Jurisdiction:
England and Wales
Citing:
Appeal from – Aird and Another v Prime Meridian Ltd TCC 19-Sep-2006
. .
Cited by:
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 09 July 2022; Ref: scu.249094