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The Detail:
The Judge in Robert Aird and Karen Aird v Prime Meridian
Limited said that when an order is made under CPR 35.12, the
experts’ meetings themselves are without prejudice. The
privilege that attaches to the meetings is a joint privilege and
its waiver requires the consent of both parties (see Rush &
Tompkins v Greater London Council [1989] AC 1280). However,
the finally agreed statement is, in the ordinary case, not
privileged. Indeed its production is ordered by the court so
that it can be relied on by everyone, including the parties and
the court, in any trial of the substantive issues. The parties
are not automatically bound by the matters agreed by their
experts, although they can agree to be so bound. However, the
lack of such agreement does not make the statement privileged
(see Robin Ellis Ltd. v Malwright Ltd. [1999] BLR 81. The
conduct of the experts’ meetings and the content of the
statement are solely for the experts themselves. Interference in
this process by the parties or their lawyers may amount to a
breach of the court order and lead to a refusal by the court to
allow that expert's evidence to be admitted (Robin Ellis).
In mediation, on the other hand, everything that happens,
including documents created specifically for the mediation, will
ordinarily be privileged.
The Judge found on the facts that the experts’ statement was
privileged. He said:
“(a) The orders in respect of
the experts' meetings and the statement only came about as a
result of the imminent mediation. To put it another way, without
the mediation, the order of 18th August 2005 in respect of the
experts' meetings and the statement would not have been made at
all. At the very least, the period for the preparation of the
joint statement would have been much longer than a month or so
from the making of the order, particularly given that experts'
reports had not yet been exchanged. The whole purpose of the
short period in which the statement had to be agreed was so that
it could facilitate the mediation.
(b) The judge did not think
that he was making a conventional order pursuant to CPR
35.12(3), although it may fairly be said that, on the wording,
that is what he did do. He clearly believed that the order was
made for the purposes of the mediation, to assist the parties
and to give the mediation the greatest possible chance of
success.
(c) The Claimant's solicitor
and the Claimant's expert both believed that the purpose of the
statement was for use in the mediation: see paragraphs 20-22
above.
(d) To put it at its highest,
the Defendant's expert believed that the statement had a dual
purpose: it was to be used initially in the forthcoming
mediation and, if the mediation failed, it might possibly be
used in any subsequent court proceedings.”
Two useful pointers come out of
this case for the future. Firstly, if the Court is asked to make
an order to support a mediation (such as experts meeting and
producing a statement), it would be best for the court order to
say expressly that the order is in support of the mediation and
not an order made under CPR 35.12. Secondly, all documents
created for mediations should be marked “without prejudice” and,
if such a document is an experts’ statement, it would be
sensible to mark it “without prejudice – in a mediation and not
a statement made under the provisions of CPR 35.12.”
NOW OVER-RULED ON APPEAL - SEE MEDIATION: QUARTERLY UPDATE FOR
JANUARY 2007 -
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