UK: Can You Use An Experts’ Joint Statement Prepared For The Purposes Of Mediation During Subsequent Legal Proceedings?

Last Updated: 28 September 2006
Article by Jeremy Glover

In the case of Aird & Aird v Prime Meridian Ltd, the dispute between the two parties was stayed to mediation. In order to assist the mediation process, the Court ordered that the parties’ architectural experts should meet on a without prejudice basis and prepare a statement of issues upon which they are agreed and not agreed. This is not uncommon. The Court Order followed the typical format of CPR 35.12. The experts duly met and a joint statement was produced.

The mediation was unsuccessful. When the proceedings recommenced, the Claimants sought to amend their pleadings in a way that was inconsistent with the views expressed by their expert in the joint statement. The Defendant objected. In reply, the Claimants said that the joint statement produced for the mediation was without prejudice and thus privileged.

As HHJ Coulson QC noted, the dispute raised two potentially competing public policies. First, the production of joint statements by experts is an important part of effective case and trial management within the TCC. It would also be contrary to the overriding objective if statements signed by the experts were to be kept secret from the Courts. However, in contrast to that, documents generated for the purposes of mediation are privileged.

The importance of what was termed "without prejudice protection" is to encourage parties to speak frankly in an attempt to settle the disputes between them. As it happened, none of the cases cited in the hearing before the Judge, dealt with the particular situation at issue here. In the normal course of events, the joint statement would not be protected by privilege once it was agreed. In other words, once the statement was signed by both experts it would become a document upon which either party could rely during the court proceedings.

What was unusual here was that the statement was produced initially for use in the mediation. HHJ Coulson QC noted that the order made was not a conventional one. It was made very much with the mediation in mind. The Claimants had proceeded on the basis that the production of the joint statement was for the purposes of the mediation.

Having met on a without prejudice basis, when the statement came to be agreed and signed, the experts agreed the removal of the words without prejudice. However the question the court had to decide was whether that agreement was only prepared for the purposes of the mediation.

The mediation agreement was in a typical form. It noted that every person involved would keep confidential all information produced for or at the mediation. However, the terms of the mediation agreement also said that evidence that is otherwise admissible or discoverable should not be rendered inadmissible simply as a result of its use at the mediation.

HHJ Coulson QC was of the view that in the ordinary case, a statement such as the one here would not be privileged. It is typically required by the order of the Court and it is used to assist the Court in the exercise of its case management and trial management functions. That the statement was used in a subsequent mediation would not make it privileged or inadmissible.

However here, the Order in respect of the expert meeting came about only because of the imminent mediation. Without the mediation, the joint statement would not have been made at all. The purpose of the statement was to facilitate the mediation. The Claimants and the Claimant’s solicitor and the expert all believed the purpose of the statement was for the use in the mediation. The Defendants believed that the statement had a dual purpose.

Following existing case law, namely Smith’s Group Plc v Weiss, the without prejudice tag which is usually applicable to documents provided for mediation, should only be waived in clear and unequivocal circumstances. This could not be said to be the case here.

The primary function of the statement was to assist the mediation. The Judge also noted that there was only a limited time to prepare the statement before the mediation. There were also financial constraints in respect of work carried out before the mediation. Thus the work which was carried out by the experts was more limited than it might have been if the experts had been preparing a joint statement for the Court. Accordingly, he ruled that the statement was privileged.

This should be the type of case that only happens once as there is an obvious way to avoid this happening in the future and that is to ensure that all parties concerned are absolutely clear on what basis the experts are being instructed. Indeed parties would be equally well advised to ensure that there is no room for doubt about the status, privileged or otherwise, in relation to everything used at any mediation in order to avoid this type of argument arising again.

This article is based on an article from the latest issue of the Fenwick Elliott Dispatch, a monthly newsletter which summarises recent key developments relating to contentious and non-contentious construction law issues. To see the current issue please visit Fenwick Elliott.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jeremy Glover
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