- Exception permits admission in evidence of ‘without prejudice’ statements from mediation (Berkeley Square Holdings v Lancer Property Asset Management)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Dispute Resolution analysis: Upholding a judge’s decision that statements made during a successful mediation in one of the parties’ confidential position paper were admissible in evidence, the Court of Appeal has considered the purpose and extent of three of the recognised exceptions to ‘without prejudice’ privilege. The court decided that material, otherwise inadmissible, could be put forward by a party seeking to uphold the settlement where the other party sought to invalidate it, alleging that it was not aware of certain payments at the time. ‘Without prejudice’ information could be pleaded in a defence to rebut the claimants’ contention of ignorance until much later as ‘misplaced and wrong’. The ramifications may concern mediators and mediation organisations, if seen as an intrusion into the confidentiality of the process. Written by Ian Gascoigne, dispute lawyer, writer and legal trainer.
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