Without prejudice rule: High Court emphasises narrow scope of exceptions

A recent High Court decision is of interest for its discussion of several of the recognised exceptions to the “without prejudice” (WP) protection which usually applies to settlement negotiations: Ocean on Land Technology (UK) Ltd v Land [2024] EWHC 396 (IPEC). The decision highlights that: the burden is on the party seeking to establish that an … Read more

UK government confirms plans for compulsory mediation in the County Court and decides against statutory regulation of the mediation sector

The UK government has announced that it is proceeding with plans to introduce compulsory mediation as a mandatory procedural step in all Small Claims in the County Court.  All parties in cases allocated to the Small Claims track (ie most claims valued below £10,000) will be required to attend a free mediation appointment with a … Read more

The UK will join the Singapore Convention – so what now?

Following the UK government’s announcement last week that it will sign and ratify the Singapore Convention, many UK and foreign businesses are now turning their minds to what that means for international commercial disputes with a UK connection. The UN Convention on International Settlement Agreements Resulting from Mediation establishes a global framework for the direct … Read more

High Court finds “without prejudice” statements contained in mediation paper were admissible to defend against allegation of fraud

The High Court has held that statements made in a “without prejudice” mediation paper were admissible as they were to be used to rebut allegations of fraud, by showing that the claimants had known about, and approved, the transactions said to constitute the alleged fraud: Berkeley Square Holdings v Lancer Property Asset Management Ltd [2020] … Read more

Court of Appeal rejects claim to without prejudice or litigation privilege in communications incorporated into settlement agreement

A recent Court of Appeal decision has highlighted the need to exercise caution when referring to privileged material in settlement agreements. The court held that the claimant was not entitled to withhold from inspection communications that had been incorporated into a settlement agreement with one of five defendants. That was despite the fact that, at … Read more

High Court finds parties agreed to vary application of “without prejudice” rule in subsequent “without prejudice save as to costs” correspondence

The High Court has held that correspondence marked “without prejudice save as to costs” and which described the conduct of prior “without prejudice” (WP) negotiations (including a mediation and subsequent discussions) was admissible in an application for costs against the claimant’s lawyers: Willers v Joyce & Ors [2019] EWHC 937 (Ch). The court accepted that … Read more

Brexit: UK unwinds implementation of EU ADR laws

Jan O’Neill Professional Support Lawyer, London   The UK Government has published legislation to effectively revoke the implementation of the EU Mediation Directive (2008/52/EC) after Brexit. The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 (the Regulations) were made on 1 March 2019 and will come into effect on exit day, whenever that occurs. Why? The development … Read more