header-logo header-logo

20 June 2019 / Tony Allen
Issue: 7845 / Categories: Features , Profession , ADR , Mediation
printer mail-detail

Privilege without prejudice

Mediators will be pleased to find judges taking the broad view of ‘without prejudice’ privilege, says Tony Allen

  • ‘Without prejudice’ privilege implications for mediation: Willers v Joyce and others, and Briggs v Clay and others

Mediators always reassure parties that what happens in a mediation remains inaccessible to a court—both if the claim does not settle, but also when it does. ‘Without prejudice’ (WP) privilege applies automatically to what transpires during mediations, as it does to any genuine settlement discussions. The privilege belongs to the parties only, and the mediator has no right to prevent parties from choosing to waive that. Some case law has suggested that contractual confidentiality created when a mediation agreement is signed also protects mediation exchanges from exposure in court (and anywhere else) and that the mediator too can invoke a remedy for breach besides the parties.

Recent cases in the Business and Property Courts have revisited the limits of WP protection. One—Willers v Joyce and others [2019] EWHC 937 (Ch)—looks specifically at the aftermath

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

NLJ Career Profile: Ken Fowlie, Stowe Family Law

NLJ Career Profile: Ken Fowlie, Stowe Family Law

Ken Fowlie, chairman of Stowe Family Law, reflects on more than 30 years in legal services after ‘falling into law’

Jackson Lees Group—Jannina Barker, Laura Beattie & Catherine McCrindle

Jackson Lees Group—Jannina Barker, Laura Beattie & Catherine McCrindle

Firm promotes senior associate and team leader as wills, trusts and probate team expands

Asserson—Michael Francos-Downs

Asserson—Michael Francos-Downs

Manchester real estate finance practice welcomes legal director

NEWS
Holiday lets may promise easy returns, but restrictive covenants can swiftly scupper plans. Writing in NLJ this week, Andrew Francis of Serle Court recounts how covenants limiting use to a ‘private dwelling house’ or ‘private residence’ have repeatedly defeated short-term letting schemes
Artificial intelligence (AI) is already embedded in the civil courts, but regulation lags behind practice. Writing in NLJ this week, Ben Roe of Baker McKenzie charts a landscape where AI assists with transcription, case management and document handling, yet raises acute concerns over evidence, advocacy and even judgment-writing
The Supreme Court has drawn a firm line under branding creativity in regulated markets. In Dairy UK Ltd v Oatly AB, it ruled that Oatly’s ‘post-milk generation’ trade mark unlawfully deployed a protected dairy designation. In NLJ this week, Asima Rana of DWF explains that the court prioritised ‘regulatory clarity over creative branding choices’, holding that ‘designation’ extends beyond product names to marketing slogans
From cat fouling to Part 36 brinkmanship, the latest 'Civil way' round-up is a reminder that procedural skirmishes can have sharp teeth. NLJ columnist Stephen Gold ranges across recent decisions with his customary wit
Digital loot may feel like property, but civil law is not always convinced. In NLJ this week, Paul Schwartfeger of 36 Stone and Nadia Latti of CMS examine fraud involving platform-controlled digital assets, from ‘account takeover and asset stripping’ to ‘value laundering’
back-to-top-scroll