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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Farm Assist Ltd v Secretary of State for the Environment, Food & Rural Affairs (No.2)  EWHC 1102 (TCC) (19 May 2009)
Cite as: 125 Con LR 154,  EWHC 1102 (TCC),  BLR 399
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| Farm Assist Limited
|- and -
|The Secretary of State for the
Environment, Food and Rural Affairs (No.2)
Jonathan Acton Davis QC. and Rebecca Stubbs (instructed by Nabarro LLP) for the Defendant.
Ms Jane Andrewartha, the Applicant in person.
Hearing date: 6th May 2009
Crown Copyright ©
The Hon. Mr. Justice Ramsey :
5. Subject to any further order of the Court, the parties are to write jointly to the Mediator, Ms Jane Andrewartha, by 5 December 2008 in an attempt to discover whether she has retained any notes or documents from the mediation which took place between the parties on 23 June 2008; and whether she has any factual (or other) recollection of the mediation and inviting her to disclose to the parties forthwith such notes or documentation she may have retained:
6. There be no limit on the liberty of the parties to take witness statements from the Mediator;
7. The parties are at liberty at trial to ask the Mediator questions about the entirety of what occurred at the mediation including matters which but for this Order may have otherwise been the subject of privilege and/or confidentiality;
8. The question of whether the Mediator be called as a witness by either party or by the Court be reserved.
"For the avoidance of doubt, the parties are to liaise over any issue concerning the Mediator in accordance with paragraphs 5-9 of the Order, dated 20 November, but the Mediator is to have liberty to apply to the Court concerning any question she may have arising from her communications with the parties ".
"You will appreciate that this mediation occurred many years ago and in the intervening period I have conducted up to 50 further mediations per year. I therefore have very little factual recollection of the mediation. Further, having retrieved my file from archive I find that whist it has a certain amount of administrative correspondence on it, together with a copy of the original Mediation Agreement and copies of the Position Statements (and is accompanied by a small lever arch file of papers), I have no personal notes on the file. This is unsurprising given that this was a mediation that settled on the day.
Accordingly I genuinely believe that, even were it appropriate for me to become involved in this matter again, there is little I can do to assist either side."
(1) Her evidence was subject to express provisions of confidentiality and non-attendance pursuant to the Mediation Agreement signed by all parties dated 24 March 2003.
(2) In any event the evidence was confidential and/or legally privileged and/or irrelevant.
The provisions of the Mediation Agreement
"Each Party in signing this Agreement is deemed to be agreeing to the confidentiality provisions of the Mediation Procedure on behalf of itself and all of its directors, officers, servants, agents and/or Representatives and all other persons present on behalf of that Party at the Mediation."
"In addition, each Party may send to the Mediator and/or bring to the Mediation further documentation which it wishes to disclose in confidence to the Mediator but not to any other Party, clearly stating in writing that such documentation is confidential to the Mediator."
"11. Every person involved in the Mediation will keep confidential and not use for any collateral or ulterior purpose:
a) the fact that the Mediation is to take place or has taken place; and
b) all information (whether given orally, in writing or otherwise), produced for, or arising in relation to the Mediation including the settlement agreement... if any) arising out of it,
except insofar as is necessary to implement and enforce any such settlement agreement or to comply with any Order of the Court in any subsequent action.
12. All documents, which include anything upon which evidence is recorded (including tapes and computer discs), or other information produced for, or arising in relation to, the Mediation will be privileged and not be admissible as evidence or discoverable in any litigation or arbitration connected with the Dispute except any documents or other information which would in any event have been admissible or discoverable in any such litigation or arbitration.
13. None of the parties to the Mediation Agreement will call the Mediator as a witness, consultant, arbitrator or expert in any litigation or arbitration in relation to the Dispute and the Mediator will not voluntarily act in any such capacity without the written agreement of all the Parties."
Confidentiality in mediations
"Mediation and other forms of alternative dispute resolution have assumed unprecedented importance within the court system since the Woolf reforms of civil procedure. Formal mediations are generally preceded by written mediation agreements between the parties that set out expressly the confidential and 'without prejudice' nature of the process. However, even in the absence of such an express agreement, the process will be protected by the 'without prejudice' rule set out above."
"The same logic, whether in support of an implied contractual term or an equitable obligation, must apply as much, if not more strongly, in the case of mediation. For it would destroy the basis of mediation if, in the case of the mediation failing, either party could publicise matters which had passed between themselves or between either of them and the mediator for the purposes of mediation. An obligation of confidence would also be owed to both parties by the mediator."
The practice of conciliation has grown and evolved in various ways over the last 10 years, in court and out of court, voluntary or directed, and extends over many parts of the country. Resolution of disputes over children by parents locked in acrimony and controversy has gradually but perceptibly taken over from efforts to preserve the state of the marriage of the parents. Conciliation of parental or matrimonial disputes does not form part of the legal process but as a matter of practice is becoming an important and valuable tool in the procedures of many family courts. This underlines the great importance of the preservation of a cloak over all attempts at settlement of disputes over children. Non-disclosure of the contents of conciliation meetings or correspondence is a thread discernible throughout all in-court and out-of-court conciliation arrangements and proposals.
These practices and expressions of opinion cannot of course be regarded as authoritative statements of the law. But in this field as in others it is undesirable that the law should drift very far away from the best professional practice. The practice described above follows the law in recognising the general inviolability of the privilege protecting statements made in the course of conciliation. But it also recognises the special regard which the law has for the interests of children. In our judgment, the law is that evidence may not be given in proceedings under the Children Act 1989 of statements made by one or other of the parties in the course of meetings held or communications made for the purpose of conciliation save in the very unusual case where a statement is made clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well-being of a child.
We wish in closing to emphasise three points. (1) Even in the rare case which falls within the narrow exception we have defined, the trial judge will still have to exercise a discretion whether or not to admit the evidence. He will admit it only if, in his judgment, the public interest in protecting the interests of the child outweighs the public interest in preserving the confidentiality of attempted conciliation. (2) This judgment is concerned only with privilege properly so called, that is, with a party's right to prevent statements or documents being adduced in evidence in court. It has nothing to do with duties of confidence and does not seek to define the circumstances in which a duty of confidence may be superseded by other public interest considerations: cf. W. v. Egdell  Ch 359 . (3) We have deliberately stated the law in terms appropriate to cover this case and no other. We have not thought it desirable to attempt any more general statement. If and when cases arise not covered by this ruling, they will have to be decided in the light of their own special circumstances.
Privilege in mediations
"It remains to be resolved definitively by the English Courts (if not by the legislature) whether there is a privilege attaching to the whole mediation process, including all communications passing within that process, whether the mediation relates to family matters, civil or commercial disputes or any other kind of issue."
"As the law presently stands, any privilege that might exist attaches to the parties and not the mediator. Consequently, the parties may agree to waive that privilege and allow the mediator to provide the Court with any information that arose in the mediation process. There is an issue, however, as to whether privilege should be attached to the mediator as well as the parties involved in the process."
"A substantial and, to our knowledge, unquestioned line of authority establishes that where a third party (whether official or unofficial, professional or lay) receives information in confidence with a view to conciliation, the courts will not compel him to disclose what was said without the parties' agreement: see McTaggart v. McTaggart  P. 94 ; Mole v. Mole  P. 21 ; Pool v. Pool  P. 470 ; Henley v. Henley  P. 202 ; Theodoropoulas v. Theodoropoulas  P. 311 ; Pais v. Pais  P. 119 ; D. v. National Society for the Prevention of Cruelty to Children  AC 171 , 191E, 226F, 236G.
It is not, in our view, fruitful to debate the relationship of this privilege with the more familiar head of "without prejudice" privilege. That its underlying rationale is similar, and that it developed by way of analogy with "without prejudice" privilege, seem clear. But both Lord Hailsham of St. Marylebone and Lord Simon of Glaisdale in D. v. National Society for the Prevention of Cruelty to Children  AC 171 , 226, 236 regarded it as having developed into a new category of privilege based on the public interest in the stability of marriage. We respectfully agree, and we can see no reason why rules which have developed in relation to "without prejudice" privilege should necessarily apply to the other. Thus we do not question the familiar rule that a party cannot prevent admission of a communication into evidence by marking it "without prejudice" if it does not in truth contain any offer of or approach towards negotiation. But we do not accept that evidence can be given of statements made by one party at a meeting admittedly held for purposes of conciliation because, in the judgment of the other party or the conciliator, that party has shown no genuine willingness to compromise. Wherever an attempt to conciliate has failed, both parties are likely to attribute the failure to the intransigence of the other. To admit such an exception would reduce the privilege to a misleading shadow. Again, even if Kitcat v. Sharp, 48 L.T. 64 is authority for the proposition that a "without prejudice" marking does not protect evidence of a threat as to what will happen if an offer is not accepted, it does not in our view follow that evidence can be given of threats, even credible threats, made by parties in the course of attempted conciliation. Where deep human emotions are engaged, as they often are in disputes concerning children, such threats are commonplace. To override the privilege in such an event would be to emasculate the privilege and so undermine the whole process of conciliation. To permit evidence to be given of a party's statements of fact inconsistent with his or her open position would, in our judgment, have the same result: unless parties can speak freely and uninhibitedly, without worries about weakening their position in contested litigation if that becomes necessary, the conciliation will be doomed to fail."
"The possible existence and desirability of a distinct privilege attaching to the entire mediation process is also usefully discussed in Brown & Marriott ADR Principles and Practice (2nd edition, 1999) at paras 22-079 to 22-097. Counsel for both ADR Group and Mrs Patel accepted, however, that this case could be decided under the existing without prejudice rule. In particular, this was because it was common ground between the parties that the court could not properly require Mr Walker to give evidence and, consistently with clause 7.4 of the agreement to mediate, neither party was intending to issue a witness summons against him. I agree that this case can be decided under the existing without prejudice rule. It may be in the future that the existence of a distinct mediation privilege will require to be considered by either the legislature or the courts but that is not something which arises for decision now."
"The court will always encourage mediation in an appropriate case. It is well-known and uncontentious in this case that mediation takes the form of assisted "without prejudice" negotiation and that, with some exceptions not relevant to this appeal, what goes on in the course of mediation is privileged, so that it cannot be referred to or relied on in subsequent court proceedings if the mediation is unsuccessful. In the present case the parties reinforced this by including a provision in their mediation agreement that they would "keep confidential all information, whether oral or written or otherwise produced for or at the mediation". This cannot of course be taken absolutely literally, since it obviously would not apply to documents obviously produced for other purposes which were needed for and produced at the mediation; for example, their building contract or the antecedent pleadings in the proceedings. There was also a note in the agreement to the effect that evidence otherwise admissible would not become inadmissible simply because it was used in mediation. But the general intent of the provision is clear and it accords with the generally understood "without prejudice" nature of mediation."
"24. I am not persuaded that disclosure of documents within the mediations falls within the exception to the without prejudice rule enunciated in Muller. The circumstances in Muller are different from those which obtain here. In that case, it was the plaintiffs who sought to deny disclosure of without prejudice material. Here, the question is whether a third party's without prejudice material should be disclosed. The Court of Appeal in Muller gave no consideration to the position of a third party. In this case the privilege belongs not only to the claimants but also to DEFRA. There are public policy reasons why DEFRA should be entitled to assert that privilege: DEFRA are entitled to protect from disclosure material which may embarrass them in other disputes. Further, in this case there was express (not just implied) agreement between the claimants and DEFRA that the without prejudice rule apply.
25. The rationale of Hoffmann LJ in Muller was that the issue was unconnected with the truth or falsity of anything stated in the negotiation and as therefore falling outside the principle of public policy protecting without prejudice communications. It would appear that that will not apply in this case, because, here, the truth or falsity of what was argued in the mediation will or may (subject to relevance) be an issue in the litigation.
26. The long line of authorities, and the CPR, encourage parties to attempt to settle disputes through without prejudice communications and mediation. There is clear public policy to encourage mediation in place of litigation. The court should be slow to find exceptions to the without prejudice rule.
27. In my judgment, the defendant cannot bring itself within the Muller exception to the without prejudice rule. For that reason alone, the defendant's application must fail. I nevertheless deal with the question of confidentiality."
"29. There is an overlap between DEFRA's objection to disclosure based on the ground of confidentiality and its resistance based on the protection it seeks pursuant to the 'without prejudice' rule, as many of the applicable principles are common to both. Had I not concluded that the defendant's application failed for the reasons given above -that is, as not falling within one of the exceptions to the without prejudice rule - I should have concluded that DEFRA would be entitled to rely on an exception to the general rule that confidentiality is not a bar to disclosure. DEFRA was a party to the confidentiality agreement and wishes its provisions to be honoured. In any event, I am persuaded that, for the reasons identified in 17-016 above, documents within a mediation should be protected from disclosure.
30. In my judgment, whether on the basis of the without prejudice rule or as an exception to the general rule that confidentiality is not a bar to disclosure, the court should support the mediation process by refusing, in normal circumstances, to order disclosure of documents and communications within a mediation.
31. I note that the disclosure sought by the defendant is of such wide scope that it would include documents held by the mediator. In my judgement, the court should be very slow to order such disclosure. Mediators should be able to conduct mediations confident that, in normal circumstances, their papers could not be seen by the parties or others."
Summary of confidentiality and privilege in mediations
(1) Confidentiality: The proceedings are confidential both as between the parties and as between the parties and the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality but where it is necessary in the interests of justice for evidence to be given of confidential matters, the Courts will order or permit that evidence to be given or produced.
(2) Without Prejudice Privilege: The proceedings are covered by without prejudice privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege.
(3) Other Privileges: If another privilege attaches to documents which are produced by a party and shown to a mediator, that party retains that privilege and it is not waived by disclosure to the mediator or by waiver of the without prejudice privilege.
The effect of the Mediation Agreement on this mediation
Should the witness summons be set aside?
(1) The issue in this case is whether the settlement agreement arising from the mediation should be set aside for economic duress. The allegations concern what was said and done in the mediation and this necessarily involves evidence of what FAL says was said and done by the Mediator. This evidence forms a central part of FAL's case and the Mediator's evidence in necessary for the Court properly to determine what was said and done.
(2) Whilst the Mediator has said clearly that she has no recollection of the mediation, I accept that this does not prevent her from giving evidence. Frequently memories are jogged and recollections come to mind when documents are shown to witnesses and they have the opportunity to focus, in context, on events some years earlier. In addition provided that the summons is issued bona fide to obtain such evidence, I accept that, as a general rule, it will not be set aside because the witness says they cannot recall matters: See R v Baines  1 KB 258 at 262 per Walton J.
(3) As I have held, calling the Mediator to give this evidence would not be contrary to the express terms of the mediation agreement which, in this case, limited her appearance to being a witness in proceedings concerning the underlying dispute.
(4) The parties have waived any without prejudice privilege in the mediation which, being their privilege, they are entitled to do.
(5) Finally, whilst the Mediator has a right to rely on the confidentiality provision in the Mediation Agreement, I consider that this is a case where, as an exception, the interests of justice lie strongly in favour of evidence being given of what was said and done.