header-logo header-logo

Privilege without prejudice

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

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

Birketts—trainee cohort

Birketts—trainee cohort

Firm welcomes new cohort of 29 trainee solicitors for 2025

Keoghs—four appointments

Keoghs—four appointments

Four partner hires expand legal expertise in Scotland and Northern Ireland

Brabners—Ben Lamb

Brabners—Ben Lamb

Real estate team in Yorkshire welcomes new partner

NEWS
Robert Taylor of 360 Law Services warns in this week's NLJ that adoption of artificial intelligence (AI) risks entrenching disadvantage for SME law firms, unless tools are tailored to their needs
From oligarchs to cosmetic clinics, strategic lawsuits against public participation (SLAPPs) target journalists, activists and ordinary citizens with intimidating legal tactics. Writing in NLJ this week, Sadie Whittam of Lancaster University explores the weaponisation of litigation to silence critics
Delays and dysfunction continue to mount in the county court, as revealed in a scathing Justice Committee report and under discussion this week by NLJ columnist Professor Dominic Regan of City Law School. Bulk claims—especially from private parking firms—are overwhelming the system, with 8,000 cases filed weekly
Writing in NLJ this week, Thomas Rothwell and Kavish Shah of Falcon Chambers unpack the surprise inclusion of a ban on upwards-only rent reviews in the English Devolution and Community Empowerment Bill
Charles Pigott of Mills & Reeve charts the turbulent progress of the Employment Rights Bill through the House of Lords, in this week's NLJ
back-to-top-scroll