Consultation Paper on Alternative Dispute Resolution - Law Reform ...

the absence of a waiver by both parties that ―without prejudice‖ correspondence
can also be disclosed.
3.124 Giving the judgment of the Court Jacob LJ also confirmed that the
court will not hear evidence as to what happened at the mediation. He added:
"I do not regard such a conclusion as disastrous or damaging from
the point of view of encouraging ADR. Far from it. Everyone knows
the Calderbank rules. It is open to either side to make open or
Calderbank offers of ADR. These days there is no shame or sign of
weakness in so doing. The opposite party can respond to such offers,
either openly or in Calderbank form. If it does so and gives good
reason(s) why it thinks ADR will not serve a useful purpose, then that
is one thing. If it fails to do so, then that is a matter the court may
consider relevant (not decisive, of course) in exercising its discretion
as to costs. The reasonableness or otherwise of going to ADR may
be fairly and squarely debated between the parties and, under the
Calderbank procedure, made available to the Court but only when it
comes to consider costs." 140
(b) Summary of Without Prejudice & Mediation
3.125 The Commission acknowledges that the words ―without prejudice‖
cannot bring down a complete veil over mediation communications. In Ryan v
Connolly 141 the Supreme Court recognised that it may be obliged to balance the
interest in disclosure against the public interest in encouraging settlements, (or
ADR, the Commission would add) in cases where the disclosure is sought not
for the purpose of holding an opponent to admissions made in the ―without
prejudice‖ offer ―but simply to demonstrate why a particular course had been
taken‖. 142 The Commission considers that the appropriate balance is achieved if
the law indicates that a court should be slow, both because of the terms of a
mediation agreement and public policy factors, to hold that the without prejudice
status of material was lost, except in clear and unequivocal circumstances.
(4) Distinct Mediation Privilege
3.126 The Commission now turns to consider whether mediation should be
granted a distinct form of mediation privilege. In Cook v Carroll 143 Gavan Duffy
140 Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 159. at
para 35.
141 [2001] 2 IRLM 174.
142 Ibid at 181.
143 [1945] IR 515.
108