Tag Archives: without prejudice

High Court decision potentially extends exceptions to without prejudice protection

In a recent decision, the High Court has found that documents relating to negotiations regarding recoverable litigation costs had to be disclosed to a third party (the claimant in the present action) who had an interest in the outcome of … Continue reading

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Filed under Confidentiality and privilege

Costs judge finds information from mediation is admissible when considering costs consequences of settlement

A costs judge has held that information about a party's costs provided for the purposes of a mediation could be used as evidence when considering the cost consequences of a subsequent settlement: Savings Advice Limited v EDF Energy Customers Ltd … Continue reading

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Filed under Confidentiality and privilege, Costs, Mediation (General), UK

Settlement offer conveyed through a mediator found not to be protected by without prejudice privilege due to ‘unambiguous impropriety’

The Court of Appeal has recently applied the rarely invoked "unambiguous impropriety" exception to without prejudice ("WP") privilege, to find that a written settlement offer conveyed through a mediator following an unsuccessful mediation was not protected by WP: Ferster v … Continue reading

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Filed under Confidentiality and privilege, Mediation (General), UK

Court of Appeal decision endorses broad view of without prejudice protection

The Court of Appeal has held that discussions between a defendant's solicitor and a claimant litigant in person were or ought to have been seen by both parties as "negotiations genuinely aimed at settlement" and therefore protected by the without prejudice rule. In doing … Continue reading

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Filed under Confidentiality and privilege, UK

Judicial mediation in mainland China explained

With the Chinese courts under increasingly heavy case loads, use of “judicial mediation” continues to be encouraged by all levels of the Chinese courts as a means of effective case management. Although mediation and “judicial mediation” both have long histories … Continue reading

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Filed under Asia, Confidentiality and privilege, Mediation (General)

Mediator summoned to give evidence at trial regarding the mediation

In the recent case of Farm Assist Limited (In Liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No. 2) [2009] EWHC 1102 (TCC) Mr Justice Ramsey considered an application by a mediator to set aside … Continue reading

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Filed under Confidentiality and privilege, Mediation (General), UK

Conduct at mediation and its impact on costs assessed by the courts

In two recent cases (7th Earl of Malmesbury and others v Strutt & Parker [2008] EWHC 424 (QB) and Nigel Witham Ltd v Robert Smith and others [No.2] [2008]EWHC 12 (TCC)) the High Court has reviewed and sanctioned an extension … Continue reading

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Filed under Confidentiality and privilege, Costs, Mediation (General), Refusal to mediate, UK

No such thing as mediation privilege – yet

In a recent High Court case, Brown v Rice & Patel [2007] EWHC 625 (Ch), Mr Stuart Isaacs QC (sitting as a deputy judge of the High Court) held that it was not only permissible but necessary to admit without … Continue reading

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Filed under Confidentiality and privilege, Mediation (General), UK

Admissibility of without prejudice negotiations when ADR is refused

In Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 887  the Court of Appeal gave its first judgment on the issue of the costs consequences that result from a party’s refusal to mediate since the landmark ruling … Continue reading

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Filed under Confidentiality and privilege, Mediation (General), Refusal to mediate, UK

Court of Appeal gives guidance on when it is reasonable to refuse ADR

In a judgment handed down this week, the Court of Appeal has given some welcome guidance for litigants on when it may be reasonable to refuse Alternative Dispute Resolution (ADR). The Court of Appeal also held that it is inappropriate … Continue reading

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Filed under Confidentiality and privilege, Mediation (General), Refusal to mediate, UK