Privilege of experts’ reports used in mediation
The judge ordered that the parties’ experts meet on a without prejudice basis to produce a statement on points of agreement and points of disagreement. The judge also stayed proceedings to allow the parties to mediate. The experts complied with the judge’s order. The parties sought to mediate but attempts failed.
The Claimants sought to amend the pleadings in a way that was inconsistent with the views of their expert, and claimed that since the experts’ statement had been prepared for mediation it was a privileged without prejudice document that could not be referred to in the litigation. The Defendants contended that the document was not without prejudice or alternatively that the differences between the statement and the new case were so great it would amount to abuse of privilege.
The judge held that it would generally be contrary to the overriding objective if the experts’ joint statement was kept secret from the court. However, it was a rule of public policy that parties be encouraged to settle their differences out of court by allowing them privilege of documents generated by or for mediation.
Ordinarily a joint statement of experts is not privileged and the mere fact that it was used in mediation would not make it privileged or inadmissible in ongoing litigation. However, if the order to prepare a statement was made for the purpose of assisting mediation, as on the facts, the statement would be privileged.
Link: Aird and Aird v Prime Meridan Ltd [2006] EWHC 2338 (TCC)
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