Highly effective voices have referred to as for the popularity of a brand new sort of privilege for mediators – a ‘mediation privilege’. This is able to be wider than the established with out prejudice privilege rule (for instance, see Briggs J, as he then was, ‘on the seek for a proportionate approach of guaranteeing confidentiality in mediation’ ((2009) NLJ). The chance to revisit the problem just lately got here earlier than the Excessive Courtroom in Pentagon Meals Group Ltd v B Cadman Ltd [2024] EWHC 2513 (Comm).
The choose in Pentagon Meals Group Ltd discovered BCL, a celebration to a settlement settlement reached throughout a mediation, answerable for misrepresentation and breach of the settlement settlement, the place it emerged following the mediation that it was not actually the authorized proprietor of a property that the settlement required it to switch. He reached his conclusions primarily based on non-privileged materials, together with the phrases of the settlement settlement itself and the events’ pleadings.
The choose additionally thought-about whether or not to recognise a mediation privilege, particularly in mild of the rising significance of different dispute decision (ADR) and the Courtroom of Enchantment’s landmark choice of Churchill v Merthyr Tydfil County Borough Council [2024] 1 WLR 3827 (CA) which confirmed the court docket’s powers to compel events to interact with ADR. Nevertheless, the choose refused to recognise a mediation privilege as a result of: he discovered that the case earlier than him may very well be determined beneath the present with out prejudice rule, the court docket couldn’t require the mediator to provide proof, and neither occasion meant to situation a witness summons to name the mediator. The choose did, nonetheless, acknowledge that: ‘It could be sooner or later that the existence of a definite mediation privilege would require to be thought-about by both the legislature or the courts however that isn’t one thing which arises for choice now.’
Agreeing with the authors of Phipson on Proof (twentieth Version, 2024), the choose famous that ‘the authorities don’t – no less than but – assist the view that “mediation privilege” is distinct from “with out prejudice privilege”’. He went on to look at that the contractual and formal context of mediation meant that mediation is a very clear instance of the place with out prejudice applies. He famous that the safety will be enhanced by the mediation settlement imposing further duties of confidentiality which ‘may even be raised by the mediator if they’re referred to as upon to provide proof, even when the events each waive “with out prejudice privilege”: Farm Help v DEFRA [2009] EWHC 1102 (TCC).’
The choose additionally prolonged the applying of the Oceanbulk Buying and selling & Transport SA v TMT Asia [2010] UKSC 44 exception to with out prejudice privilege to use to the implication of contractual phrases. In that case, the Supreme Courtroom held that the information communicated between events in the middle of ‘with out prejudice’ negotiations ought to be admissible, if they’d in any other case be admissible as a part of the ‘factual matrix’ to assist contractual development.
The choose in Pentagon Meals Group Ltd defined: ‘In my judgment, justice does clearly demand that implication of phrases ought to be capable of draw on the identical materials as interpretation of phrases within the Oceanbulk exception which might keep away from not create synthetic distinctions and promote not frustrate settlement. Certainly, for the reason that implication of phrases should not contain rewriting the contract, however solely implication that’s essential to make the contract work (as Lord Neuberger stated in BNP Paribas and Lord Hughes repeated in Ali), entry to with out prejudice materials is simply as, if no more, more likely to allow the court docket to implement what the events actually agreed by their settlement. That reassurance is extra more likely to promote settlement and for events to barter freely than nervousness that they have to be extremely exact of their settlement settlement because the court docket will take a pedantically literal strategy to interpretation or implication of its phrases.’
This was a uncommon alternative for the court docket to formally recognise a definite mediation privilege which might additionally lengthen to different kinds of non-adjudicative ADR procedures. Though the authors of Phipson accurately observe that the authorities haven’t, as but, recognised a mediation privilege, these observations mustn’t have prevented the choose from appreciating the advantages of a mediation privilege which might even be in keeping with the present route of civil justice reforms in enhancing the position of ADR. It’s hoped that, because the case legislation develops following the choice in Churchill and the very current amendments to the CPR (see our earlier article ‘Churchill and new ADR guidelines’, 5 November 2024), a future court docket will lastly recognise a definite mediation privilege.
Masood Ahmed is an affiliate professor of legislation on the College of Leicester, and a member of the Regulation Society’s Dispute Decision Committee. Lal Akhter is director of Docket Reside and an unregistered barrister
