6 January 2009 01:03

Without Prejudice Joint Experts' Statement - CPR35

A recent case in the Court of Appeal , Aird v Prime Meridian Limited  dealt with the question as to whether an experts’ joint statement which a court ordered should be prepared and used in a mediation between the parties could be then used in the subsequent court proceedings.

In this particular case, the Claimants, Mr & Mrs Aird had engaged the Defendant, Prime Meridian Limited as their architect for the construction of a house. Unfortunately, the relationship broke down and culminating in Mr & Mrs Aird issuing proceedings against the Architect.

The parties agreed to mediate the claim and accordingly the proceedings were stayed whilst that mediation took place. As part of the trial directions the expert were to meet on a without prejudice basis and to prepare a brief statement of the issues upon which they are and are not agreed. The experts met and a joint statement was produced. This statement was then used in the mediation. Unfortunately the mediation was unsuccessful and therefore the litigation continued.

However the Defendants, Prime Meridian later sought leave to use the joint statement in the litigation. The Claimants objected to this stating that it was prepared for the purposes of the mediation and as such was a privileged document.

The matter came before H H J Coulson QC in the Technology and Construction Court. His judgement was that this statement was privileged. However leave to appeal was given and in a Judgement handed down on 21 December 2006 the Court of Appeal held that where a joint statement was ordered by the Court pursuant to CPR 35.12 then that statement is not privileged even though the discussions leading up to it were.

The Claimants argued that the statement was privileged because it was used in the mediation. However the Court of Appeal dismissed this argument by stating quite categorically that it did not acquire privilege just because it was used in a mediation.

CPR 35.12 states that
1. The Court may at any stage direct discussion between experts for the purpose of requiring the experts to

a. Identify and discuss the expert issues in the proceedings;
and
b. Where possible, reach agreed opinion on those issues;

2 The Court may specify the issues which the experts must discuss
3 The Court may direct that following a discussion between the experts they must prepare a statement for the Court showing -

(a) those issues on which they agree;
(b) those issues on which they disagree and summary of their reasons why they disagree;

4 The contents of the discussions between the experts shall not be referred to at trial unless the parties agree.

5 Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement;”

As Lord Justice May stated,

In my view the structure of this rule is clear. It provides the balance between the need for the parties’ experts to be able to have a free discussion about issues amenable to their expert opinion which are relevant in the case without the details of those discussions becoming material which can be used in the proceedings, with the Court’s need to have some proportionate and useful product of those discussions. The statement for the Court for which rule 35.12 (3) provides is a statement which, if it is directed, the experts must produce. It is a statement which, from the very wording of the rule, is available for use in the proceedings. It is not protected by privilege. One of its purposes is to define and narrow the contentious issues. An agreement of this kind is likely to influence any decision the Court may reach and the Court is likely to make findings consonant with what the experts stated to be their agreement. But the Court is not bound to do so and rule 35.12 (5) expressly says that the experts’ agreement shall not bound the parties unless they expressly agree to be bound.

The Court of Appeal therefore held that a joint statement by experts is not strictly speaking an admission on behalf of the parties. Even though the statement was prepared for the purposes of the mediation, it was stated to be pursuant to the order of the Court and CPR rule 35. Accordingly, the Court held that the statement produced and signed by the experts was not covered by privilege and could be used in the continuing litigation.

The Court of Appeal also stated that whilst a statement pursuant to CPR 35 does not attract privilege, it does not prevent the experts from producing a further document purely for the purposes of mediation and which would remain privileged. However if they produced this document and not a statement pursuant to CPR 35 as ordered, then the Court would be making an enquiry as to the reasons why the Order had been ignored.

This is a very useful reminder to experts to their duty to the Court and the fact that they

should be very clear as to their role and to what end any joint statement is to be used.

Sarah Shemmings

April 2007

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