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20 June 2019 / Tony Allen
Issue: 7845 / Categories: Features , Profession , ADR , Mediation
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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

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NEWS
The Law Society RFC Festival of Sport returns next month, bringing together legal and financial services professionals for one of the sector’s largest annual sporting events
Legal aid deserts leave almost one in four without adequate access to justice
The Solicitors Regulation Authority (SRA) has warned solicitors and law firms that using artificial intelligence does not alter their professional obligations, amid concerns over inaccurate legal material and client confidentiality
From forgotten interest claims to case-management appeals, a string of procedural developments offers useful—and occasionally cautionary—lessons for practitioners

Jonathan Fisher KC highlights that it now accounts for around 40% of criminal offences, with roughly 70% involving technology, and argues that the UK cannot simply prosecute its way out of the problem. Detection, investigation and prosecution all require improvement, while different fraud types demand tailored responses.

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