A reference in a Reply, to the defendant refusing to mediate, was struck out. It breached the rule against disclosure of without prejudice correspondence. (R (Wildbur) v Ministry of Defence  EWCH 821 (Admin) , Cranston J).
The Claimant made an application for judicial review and proposed mediation. In granting permission for that review Holman J said:
‘I urge very strongly that both sides now draw breath, take stock and then every endeavour to negotiating a fair and reasonable settlement, including by the use of mediation. ….’
Just over a week later the Claimant again proposed mediation. The defendant replied proposing a without prejudice meeting between the parties and their legal advisers. A consent order was filed staying directions to enable the parties ‘to undertake alternative dispute resolution’. A settlement meeting was held but no settlement was reached.
The offending words
In its Reply to the Defence the Claimant stated:
‘The Defendant has refused mediation (and continues to do so) attending only an informal meeting in October 2015. Separate submissions will be made about this at the end of the hearing should no mediation be held before the hearing.’
‘The defendant has, despite Holman J’s recommendation and the claimant’s repeated offers, refused mediation (agreeing only to an informal meeting). It has put the Claimant to delay and expense.’
The Defendant submitted that the material was not only inaccurate but derived exclusively from without prejudice correspondence and discussions. They invoked the well-known passage of Oliver J from Cutts v Head  Ch 290 at 296:
‘Parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings……’
The claimant argued that:
- Holman J had specifically ordered mediation (not a meeting),
- The statements were statements of bare fact, in that open offers of mediation had been made and that, although there was no specific refusal, the failure to respond constituted a refusal, and
- The words in the Reply did not touch on the contents of the correspondence or the meeting and did not, therefore, fall within the Cutts v Head criteria.
Cranston J expressly referred to the public policy of encouraging settlement negotiations and held that the privilege rule was broad:
‘…it applies as well to a failure to reply to an offer as much as to an actual reply. In my view, his Lordship’s [Oliver LJ’s] words cannot be read down, as submitted, to cover specific offers for settlement. Instead they extend to the very fact of an offer of settlement negotiations…. In my view this application must be granted.’
The judge commented that there had been no express refusal to mediate but, even if there had, that would be covered by the privilege
‘in that it is a fact that we obtain exclusively from the without prejudice correspondence and negotiations’.
The judge’s view was that to allow the Claimant to make these comments in its reply would undermine the ‘strong public interest in encouraging the settlement of disputes by all forms of alternative dispute resolution, including mediation.’
The offending passages were struck out and replaced with a statement that ‘alternative dispute resolution had been attempted, but has been unsuccessful.’
The case deals with a narrow point. A party was not allowed to refer to the refusal to mediate in a Statement of Case. However, it obviously does not mean that a party cannot do so when the court considers costs at the end of a case.