Protecting mediation evidence—witnesses and depositions
Protecting mediation evidence—witnesses and depositions

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Protecting mediation evidence—witnesses and depositions
  • Scope of the protection for witness and deposition mediation evidence under CPR 78.27
  • When does CPR 78.27 apply to protect witness and deposition mediation evidence?
  • Applying to protect witness and deposition mediation evidence under CPR 78.27

Brexit: The UK's departure from the EU on exit day, ie Friday 31 January 2020, has implications for practitioners considering settlement through mediation. For guidance, see: Cross border considerations—checklist—Settlement—Brexit specific and Cross border considerations—checklist—Brexit—impact on CPR.

This Practice Note deals with a party wishing to obtain cross-border mediation evidence from a mediator or mediation administrator. It sets out the scope of the protection afforded by CPR 78.27 and provides guidance on how to apply for various orders, including a witness summons, cross-examination with the court’s permission, evidence by deposition and enforcing attendance of the witness.

Scope of the protection for witness and deposition mediation evidence under CPR 78.27

CPR 78.27 sets out the procedure involved where a party wishes to obtain mediation evidence from a mediator or mediation administrator.

Note: CPR 78.27 only applies to the mediation of cross-border disputes and there are exceptions to its application to certain types of dispute (revenue, customs, administrative matters and State liability), see Mediation Directive and CPR 78 Section III.

For the position regarding purely domestic mediations see Mediation: confidentiality and privilege. More generally the following may also be of interest Privilege - general principles, Privilege - types of privilege, Without prejudice communications and Witness summons.

Relevant definitions include: