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16 September 2020 / Bryan Clark
Issue: 7902 / Categories: Features , ADR , Mediation , Profession
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Without prejudice: Shedding new light

27520
Bryan Clark sets the record straight on recent developments in without prejudice rules in mediation
  • Berkeley Square Holdings and others v Lancer Property Asset Management Ltd and others [2020] EWHC 1015 (Ch): shedding significant new light on some of the exceptions to the without prejudice rule.


Confidentiality is one of the most vaunted attributes of mediation. One important benefit of this is the ability of parties to speak freely in their negotiation safe in the knowledge that what happens in the mediation, stays in the mediation. In particular, mediators often assure parties that matters disclosed by parties in the heat of the battle cannot be led in evidence in any consequent litigation. But the issue is not so clear cut. There is no absolute bar on evidential disclosure as to what took place in the mediation. No special mediation privilege exists in England and Wales and no bespoke statutory provisions governing confidentiality in mediation exist (except in EU cross border matters under the Cross Border Mediation (EU Directive)

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NEWS
Restrictions on workplace non-disclosure agreements could make settlements slower, more complex and more expensive when reforms expected in 2027 take effect
Private prosecutors face closer scrutiny under Crown Prosecution Service guidance designed to strengthen accountability and consistency when intervention is requested
Foreign states cannot necessarily claim immunity for cyber operations launched abroad against computers in Britain, following a divided Supreme Court ruling
Defendants who make unsupported complaints about their lawyers risk losing legal aid while confiscation proceedings continue without representation
Lawyers advising Russian clients face different sanctions restrictions across the UK, EU and US, despite their shared objective of increasing pressure on Russia
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