Yes I’m back, I have just been moving offices and it has been a hectic time but during this time something caught my eye.  A little case called Aird v Prime Meridian Ltd which was a matter Before His Honour Judge Coulson QC.  I have heard Judge Coulson speak, he is a very intelligent and wise man. 

The matter before him was interesting stuff for all of you who are dealing with Mediation and in particular a series of events in a case, It happened in a normal manner, there was a construction based case and there were Experts appointed on each side.  On top of that there was a desire expressed by both Parties to mediate.  Prior to the Mediation there was an application that there should be a signed statement by Experts and Judge Thornton QC should roll on the matter on paper, he did so and ordered that by the 23rd September 2005 the Parties Architectural Experts would meet “without prejudice” and subsequently prepare a statement of agreement or disagreement on the issues.  

Part of his order included a direction that there will be a stay of the action for Mediation, on the 1st October 2005 for two months, in other words, within the two months of this period there will be a Mediation.  There was Mediation, it failed!  During the Mediation as happens there was an agreement that it was on a “without prejudice” basis and that all offers, promises and statements during Mediation proceedings were inadmissible in evidence on any subsequent Litigation or Arbitration and there is a further note that evidence which was other wise admissible or discoverable should not be rendered inadmissible or none discovery simply by the use of it in the Mediation process.  After the Mediation the Claimants immediately thought to make amendments to their stated case – a bit of “fishing” had obviously revealed something in the troubled waters

There was an objection by Prime Meridian, the Defendant’s, they shouted foul in that the changes were inconsistent with the expressed views of their Expert as issued in their statement of the 1st September.  Wrong said the claiming party, they said that the statement had been produced for Mediation, it was without prejudice and was privileged.  Not to be out done the Defendant sought a declaration from the Court that the statement was not without prejudice document and submitted in the alternative that even if it was, the difference between the statement in the Defendant’s case has now stated for such that there had been an abuse of privilege and the without prejudice tag should be removed i.e. something must have came to light during the Mediation and was demeaned to the case that their side had pleaded before court.  In front of His Honour Judge Coulson QC there was a statement from His Honour Judge HHJ Thorton QC as to what he understood his order meant, evidence from the Claimant’s Solicitor and Expert and that the without prejudice statement was in respect of Mediation only.

So what happened?  HHC Judge Coulson QC refused the Defendant’s application and held:

a) The Judge held that in an ordinary case the statement of the kind which was signed in September would not be privilege, the fact that there was a subsequent Mediation would not make it privileged or in admissible in the on-going court proceedings.

b) The Judge in the original case does not believe in making his conventional order under CPR rules that it was for the purpose of Mediation, the Mediation sits outside the Court in that moment in time.  The Defendant’s expert may have believed the statement had a dual purpose for a Mediation and if possibly Court proceedings.  This is not so.

c) The Claimant’s Expert had not carried out extensive research which she had ordinarily done before going into Court so therefore this statement w