During a costs assessment a question arose over the admissibility of information provided during a mediation. It was suggested that evidence in arriving at an approximation of the Defendant's costs made use of various information including that provided to the Claimants for the purpose of mediation between the parties. The use of this information was contrary to the clear terms of the mediation agreement. Clause 15 of the Mediation Agreement made it clear that:
"all documents or other material produced for or brought into existence for the mediation will be subject to without prejudice or negotiation privilege ... [and] not be disclosable in any litigation or arbitration connected with the dispute so long as and to the extent that such privilege applies".
Master Haworth found as a fact that the information relied on consisted of documents produced for or brought into existence in relation to the proposed mediation. Crucially he also found that the statements referred to were purely factual. The Master continued that it is imperative that when parties enter into a formal mediation or informal negotiations for settlement of a claim they do so in the full knowledge of their opponent's costs. Whilst the "without prejudice privilege" exists in a mediation to protect the disclosure of admissions or concessions made in negotiations, it does not protect statements of pure fact:
"The whole purpose of the mediation was to achieve a settlement. In those circumstances any costs information given in mediation is and must be admissible in order to work out the consequence of any subsequent settlement."