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 the balance was in favour of the mediator giving the evidence requested.
In the context of mediation and in the absence of an express provision, an implied confidentiality arises but evidence may be given of those matters if the court considers that it is in the interests of justice to do so, and ‘DEFRA and FAL have agreed with the Mediator to treat the mediation as confidential. That, in my judgment, is an obligation which is binding as between the parties and the Mediator but that the court can permit the use of or order disclosure of the otherwise confidential material if it is in the interests of justice to do so. Whilst it is possible for the confidentiality to be waived, that has to be with the consent of all parties. This means that, in my judgment, FAL and DEFRA cannot waive confidentiality in the mediation so as to deprive the Mediator of her right to have the confidentiality of the mediation preserved. ‘
Ramsey J said: the position as to confidentiality, privilege and the without prejudice principle in relation to mediation is generally as follows:
(1) Confidentiality: The proceedings are confidential both as between the parties and as between the parties and the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality but where it is necessary in the interests of justice for evidence to be given of confidential matters, the Courts will order or permit that evidence to be given or produced.
(2) Without Prejudice Privilege: The proceedings are covered by without prejudice privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege.
(3) Other Privileges: If another privilege attaches to documents which are produced by a party and shown to a mediator, that party retains that privilege and it is not waived by disclosure to the mediator or by waiver of the without prejudice privilege.’
Judges:
Ramsey J
Citations:
[2009] EWHC 1102 (TCC), 125 Con LR 154, [2009] BLR 399
Links:
Jurisdiction:
England and Wales
Citing:
See Also – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Re D (Minors) (Conciliation: Disclosure of Information) CA 1993
The court considered the privileged status of statements made in proceedings under the Children Act 1989 together with the existence of exceptions to that status.
Held: Sir Thomas Bingham MR described the practice in family concilations: ‘The . .
Cited – D v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
Cited – Re D (Minors) (Conciliation: Disclosure of Information) CA 1993
The court considered the privileged status of statements made in proceedings under the Children Act 1989 together with the existence of exceptions to that status.
Held: Sir Thomas Bingham MR described the practice in family concilations: ‘The . .
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Cumbria Waste Management Ltd and Another v Baines Wilson (A Firm) QBD 16-Apr-2008
The court was asked to consider whether documents generated in a mediation could be disclosed by one of those parties in later proceedings against solicitors for negligence in drafting and negotiation and agreement with the other party, which gave . .
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 – Aird and Another v Prime Meridian Ltd CA 21-Dec-2006
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.
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Arbitration
Updated: 18 July 2022; Ref: scu.347145
