FARM ASSIST LTD V SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS (NO 2)

[2009] EWHC 1102 (TCC), Queen’s Bench Division, Technology and Construction Court, Mr Justice Ramsey, 19 June 2009

Mediation – Witness summons issued against mediator in proceedings to overturn settlement reached following mediation – Confidentiality – Privilege – Whether it was in the interests of justice to call the mediator – Civil Procedure Rules, r 34.3

A dispute arose between FAL and DEFRA, and in June 2003 they entered into a Mediation Agreement so that the matter could be resolved. The Mediation Agreement contained a series of clauses relating to confidentiality, in particular that none of the parties to the Mediation Agreement would call the Mediator as a witness in any litigation or arbitration in relation to the dispute. The parties settled their dispute. In 2008 FAL commenced proceedings to set aside the settlement on the basis that it had been entered into under economic duress. DEFRA wished to call the Mediator as a witness, and obtained a witness summons. The Mediator sought to have the witness summons set aside. Ramsey J held that the witness summons should be allowed to stand. The applicable principles were that: the mediation proceedings were confidential both as between the parties and as between the parties and the mediator, but confidentiality could be overridden where it was necessary in the interests of justice for evidence to be given of confidential matters; the proceedings were covered by without prejudice privilege as between the parties, but could be waived by them; and a further privilege attached to documents produced by a party and shown to a mediator, and it was not waived by waiver of the without prejudice privilege.