It has been established for some time that UK courts can conceivably have access to what was agreed in mediation in very restricted and relatively rare situations, such as where fraud or undue influence is involved. In the case of Pentagon Food Group Ltd & Others v B. Cadman Ltd [2024] EWHC 2513 however, the Commercial Court appears to have to some extent extended when a court can have this access.
What was actually said in the mediation is likely to remain privileged. However without prejudice privilege may now conceivably be over-ridden if there is subsequent doubt as to what exactly was agreed. As Derek Marshal of College Chambers put it in a recent webinar on the subject, the Pentagon Foods case seems to extend the idea of when mediation privilege can be ‘lifted’ to the situation where the parties reach an apparent agreement but it’s not clear as to what exactly was agreed. In that situation the court’s approach is now likely to be that the judge can consider and take a sensible view of what the parties agreed or intended to agree. This may prove to be of practical support to mediators.
The decision may herald an emerging and developing concept of mediation privilege concerning what can be revealed to a court when having to determine what terms were agreed between the parties. Watch this space!
WRM
