The confused case of the meeting of experts and mediation

[2006] EWHC 2338 (TCC) TEDR Volume 12 Issue 1

The Facts

This was a building dispute which went to litigation. In the course of the litigation HHJ Thornton QC made a direction that:

“By 23.9.05 the parties’ architectural experts ….do meet without prejudice and prepare a statement of the issues upon which they are agreed and those upon which they are not agreed with a brief statement of the reasons for the disagreement.”

He also ordered that the case be stayed from 1st October to 31st November 2005 to allow the parties to mediate.

The experts complied with the directions order and by 1st September 2005 had agreed a statement of matters agreed and not agreed. In December 2005 (slightly later than anticipated) there was mediation. The mediation was unsuccessful in resolving the dispute and so the legal proceedings carried on in the New Year of 2006.

The Claimants sought to amend their pleadings in a way which was apparently inconsistent with the views expressed by their expert in the statement. The Defendants opposed the Claimants’ application to amend the pleadings. The Claimants asserted that as the statement was produced “without prejudice” for the mediation, it was a “without prejudice” document and so was privileged. Accordingly the Claimants contended that no reference could be made to its contents in the on-going litigation. The Defendants disagreed and contented that even if it were “without prejudice” and hence privileged, the differences between it and the Claimants new case were “so grotesque” that there had been an abuse of privilege whereby the document should lose its privileged status.

The Issues

The key issue was the application of the without prejudice rule in the above circumstances.

The Decision

The judge confirmed that normally a statement produced by experts under CPR 35.12 (3) would not be without prejudice and could be referred to in litigation.

However, the judge found as a fact that in this particular case “the primary function of the statement was to assist in the mediation”.

He accordingly found that it was and remained privileged and hence its contents could not be referred to in the litigation.

He also found that there was no abuse of privilege in this case which would otherwise cause the without prejudice and hence privileged nature of the document to be lost.

Comment

The judge confirmed that normally a statement produced by experts under CPR 35.12 (3) would not be without prejudice and could be referred to in litigation.

However, the judge found as a fact that in this particular case “the primary function of the statement was to assist in the mediation”.

He accordingly found that it was and remained privileged and hence its contents could not be referred to in the litigation.

He also found that there was no abuse of privilege in this case which would otherwise cause the without prejudice and hence privileged nature of the document to be lost.