We reported on the first instance decision of the following case in the November 2006 edition of our Updater.

In this case, the parties had agreed to mediate and the court ordered the parties’ experts to produce a statement of the issues on which they agreed and on which they disagreed under Civil Procedure Rule (“CPR”) 35.12. The mediation failed; the claimant sought to amend its claim by referring to the experts’ statement; and the defendant sought to prevent the claimant from so doing on the grounds that the experts’ statement was privileged.

Robert and KarenAird v Prime Meridian [2006] EWCA Civ 1866

The trial judge’s reasoning and his conclusion was that, whilst ordinarily a statement ordered by the court for the purpose of a court hearing would not be privileged, in this particular case it was privileged because (amongst other things) the judge’s order requiring the experts’ statement was made only because of the mediation; the judge making the order did not think that he was making a conventional order under CPR 35.12; and both the claimant’s solicitor and expert clearly thought that the statement was for mediation only.

The Court of Appeal’s analysis

The Court of Appeal held that both the judge’s reasoning and his conclusion were wrong. It was not in dispute that the order was made with mediation in mind. However, the order was in a conventional form for an order under CPR 35.12 (not least because the court had no power to make an order for the purposes of the mediation). The order should have been construed objectively. The views of the judge who had made the order and the intentions of the claimant were immaterial. The experts’ statement was a joint statement made pursuant to CPR 35.12 and, as such, was not privileged.

Thus, the trial judge’s focus on the issue as to when the court will remove a “tag” of privilege was wrong, because there was no such test where the statement was not privileged in the first place.