Farm Assist Ltd v Secretary of State for the Environment, Food & Rural Affairs (No.2)

Mediation communications are generally confidential as between the parties and the mediator. That confidentiality may be enforced by the mediator even where the parties have agreed to waive without prejudice privilege. The court may nevertheless permit or order disclosure where the interests of justice require it.

Without prejudice privilege belongs to the parties and may be waived by them. Other privileges, including legal advice and litigation privilege, are not lost merely because material is shown to a mediator.

A contractual restriction on calling a mediator as a witness must be construed according to its wording and context. Where the mediator’s evidence is central to an allegation that a settlement was procured by economic duress, the interests of justice may justify compelling that evidence.

Farm Assist Ltd sought to set aside a settlement agreement with the Secretary of State on the ground that it had been entered into under economic duress. The settlement followed a mediation conducted by Ms Jane Andrewartha.

The parties had waived without prejudice privilege and had relied on events at the mediation in their pleadings and witness statements. The mediator had little or no recollection of the mediation and relied on contractual confidentiality and a term restricting the parties from calling her as a witness.

The mediator applied under CPR rule 34.3(4) to set aside a witness summons issued by the Secretary of State. The central questions were the scope of mediation confidentiality and privilege, the effect of the contractual restriction, and whether the interests of justice required the mediator to give evidence.

1. Application dismissed. The mediator was required to give evidence in response to the witness summons.
2. Mediation confidentiality operates both between the parties and between the parties and the mediator. It arose expressly under the Mediation Agreement and would also arise, in the absence of express provision, as an implied obligation. The court would generally uphold it, but could permit or order disclosure where necessary in the interests of justice.
3. Without prejudice privilege applied between the parties and was their privilege to waive. The parties’ waiver did not deprive the mediator of her separate right to enforce confidentiality. Material retaining legal advice privilege or litigation privilege remained protected notwithstanding disclosure to the mediator.
4. The contractual term that the parties would not call the mediator as a witness “in relation to the Dispute” was construed narrowly. The defined dispute concerned the underlying work claim, whereas the present proceedings concerned whether the settlement agreement had been procured by duress. The term therefore did not apply.
5. Even if the contractual restriction had applied, it would have been a factor in the court’s interests-of-justice assessment. Relevant considerations included that the mediation evidence was central to the duress claim, that the parties had waived without prejudice privilege, that the mediator had been given an opportunity to identify relevant documents, and that her lack of recollection did not of itself justify setting aside a bona fide summons.
6. The mediator’s confidentiality right was outweighed in this case by the strong interests of justice in obtaining evidence about what had been said and done at the mediation. The witness summons was therefore upheld.

First-instance application in the High Court (Technology and Construction Court). The application to set aside the witness summons was dismissed.