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Farm Assist Limited v DEFRA

Posted on 12/12/2008 · Posted in Mediation

Waiving privilege of mediation, calling mediators to give evidence at trial 

The Claimant was DEFRA. It brought proceedings against Farm Assist Limited, the Defendant, for its handling of the foot and mouth outbreak.

The parties ultimately entered into a settlement. The Defendant sought to have the settlement agreement set aside, arguing that it had been entered into while the Defendant was under economic duress. The parties raised no objections to the mediator being called to give evidence in the trial, although the mediator suggested that she had little recollection and no notes of what had taken place during the mediation.  While the Claimant was still keen to involve the mediator, the Defendant was doubtful. The mediator did not want to be involved.

The judge held that the mediator should give evidence at trial (irrespective of the mediator’s concerns over his ability to recall events). He stated that mediation was without prejudice and covered by privilege. However, in his view, while privilege could not be impliedly waived simply because of issues arising in the proceedings, parties themselves could waive the privilege. Parties could expressly waive privilege or impliedly waive privilege by making certain references in relied on evidence such as witness statements.

The judge also made clear that mediation was confidential between the parties and the mediator, and this might be express or implied. Ordinarily it would require the permission of the parties and the mediator to waive confidentiality, but on the facts the court would order disclosure in the interests of justice.

Link: Farm Assist Limited v DEFRA [2008] EWHC 3079 (TCC)

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