New English decision on without prejudice privilege and mediations

Herbert Smith, an English firm, have written a little note about Brown v Rice & Patel [2007] EWHC 625 (Ch). The decision does not come to any startling conclusions, but recaps the more recent English decisions on without prejudice privilege, and is accordingly worth noting. There was a dispute about whether a settlement had been arrived at. The Court found that it could have regard to communications at mediation — notwithstanding that they were recognised to be privileged under negotiation, or “without prejudice” privilege at common law — in order to ascertain whether an agreement had been arrived at. None had, the Court found, because the mediation agreement required a signed written document as a condition of the existence of any final settlement, and the mediation agreement had not been amended in that regard. But the Court declined an invitation to recognise a ‘mediation privilege’ which would throw a blanket of privilege over everything said or done at mediation which would admit of fewer exceptions than the common law negotiation privilege. The Court also confirmed the exception to the privilege ‘where one party is intended to and does in fact act following a clear statement made by the other party in the negotiations giving rise to an estoppel.’ The other cases referred to in the note are:

  • Cutts v Head [1984] Ch 290;
  • Rush & Tompkins Ltd v Greater London Council [1989] AC 1280;
  • Unilever plc v The Proctor & Gamble Co [2000] 1 WLR 2436;
  • Reed Executive Plc v Reed Business Information Ltd [2004] 1 WLR 3026;
  • Hall v Pertemps Group Ltd [2005] EWHC 3110 (Ch); and
  • Aird v Prime Meridian Ltd [2006] EWCA Civ 1866.

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