Farm Assist Ltd v The Secretary of State for Environment, Food and Rural Affairs

JurisdictionEngland & Wales
Judgment Date19 May 2009
Neutral Citation[2009] EWHC 1102 (TCC)
Docket NumberCase No: HT-07-118
CourtQueen's Bench Division (Technology and Construction Court)
Date19 May 2009
Between:
Farm Assist Limited (in liquidation)
Claimant
and
The Secretary of State for the Environment, Food and Rural Affairs (No.2)
Defendant

[2009] EWHC 1102 (TCC)

Before:

The Hon. Mr. Justice Ransey

Case No: HT-07-118

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Robert-Jan Temmink and Saul Margo (instructed by Yates Barnes) for the Claimant

Jonathan Acton Davis QC. and Rebecca Stubbs (instructed by Nabarro LLP) for the Defendant

Ms Jane Andrewartha, the Applicant in person

Hearing date:6 th May 2009

Approved Judgment

THE HON.MR.JUSTICE RAMSEY

The Hon. Mr. Justice Ramsey:

1

This is an application by a mediator to set aside a witness summons under CPR rule 34.3(4). That summons seeks her attendance to give evidence in the unusual circumstances of this case.

2

In these proceedings the Claimant, FAL, is seeking to set aside a settlement agreement entered into with the Defendant, DEFRA, on the grounds that the settlement was entered into under economic duress. The settlement agreement was entered into as a result of a mediation which took place on 25 June 2003 and in which the Mediator was Ms Jane Andrewartha, an experienced mediator and a partner in Clyde & Co. LLP.

3

The question of the approach of the parties to evidence of what happened in the mediation, including evidence from the Mediator, was raised at case management conferences in July and October 2008. On 17 October 2008 directions were given leading up to a hearing in November 2008 of certain issues of privilege in relation to disclosure. In preparation for that hearing the parties exchanged written submissions. DEFRA stated at paragraph 47 that it wished the Mediator to give evidence and that she should be free to give evidence about the entire conduct of the mediation including her private conversations with DEFRA and FAL and their advisers.

4

In submissions in response, FAL stated that it had never had any objection to calling the Mediator to give evidence in principle and that she should give evidence about private meetings with the parties, although it stated that the need to call the Mediator had not yet been demonstrated. FAL stated that one approach, which found favour with DEFRA, was for the parties to write to the Mediator in an attempt to discover whether she had retained any notes or documents from the mediation and whether she had any factual recollection of the mediation.

5

On 20 November 2008 when I heard submissions on privilege, the position taken by the parties led to directions which were substantially agreed as follows:

5. Subject to any further order of the Court, the parties are to write jointly to the Mediator, Ms Jane Andrewartha, by 5 December 2008 in an attempt to discover whether she has retained any notes or documents from the mediation which took place between the parties on 23 June 2008; and whether she has any factual (or other) recollection of the mediation and inviting her to disclose to the parties forthwith such notes or documentation she may have retained:

6. There be no limit on the liberty of the parties to take witness statements from the Mediator;

7. The parties are at liberty at trial to ask the Mediator questions about the entirety of what occurred at the mediation including matters which but for this Order may have otherwise been the subject of privilege and/or confidentiality;

8. The question of whether the Mediator be called as a witness by either party or by the Court be reserved.

6

Conscious that these matters had been agreed by the parties but that the Mediator had not had an opportunity to make her views known, a direction was added at paragraph 9: “The Mediator do have liberty to apply.”

7

On 12 December 2008, on the handing down of my judgment on privilege following the hearing in November 2008, I made the further order at paragraph 5:

“For the avoidance of doubt, the parties are to liaise over any issue concerning the Mediator in accordance with paragraphs 5–9 of the Order, dated 20 November, but the Mediator is to have liberty to apply to the Court concerning any question she may have arising from her communications with the parties”.

8

On 9 December 2008 DEFRA's solicitors wrote a letter to the Mediator, jointly with FAL's solicitors, enclosing what was then the draft order from the hearing in November 2008. The Mediator responded on 10 December 2008 that her fees for the mediation had not been fully paid and saying that subject to payment she was obtaining the file from the archives. Payment was made and the Mediator wrote on 28 January 2009 to say:

“You will appreciate that this mediation occurred many years ago and in the intervening period I have conducted up to 50 further mediations per year. I therefore have very little factual recollection of the mediation. Further, having retrieved my file from archive I find that whist it has a certain amount of administrative correspondence on it, together with a copy of the original Mediation Agreement and copies of the Position Statements (and is accompanied by a small lever arch file of papers), I have no personal notes on the file. This is unsurprising given that this was a mediation that settled on the day.

Accordingly I genuinely believe that, even were it appropriate for me to become involved in this matter again, there is little I can do to assist either side.”

9

In response DEFRA's solicitors said that nevertheless they would wish to meet the Mediator and take a witness statement. FAL's solicitors made it clear that in the light of the response from the Mediator they considered any further approach to her to be a waste of costs.

10

The Mediator then wrote on 10 and 23 February 2009. She referred to the terms of the Mediation Agreement entered into between her and the parties dated 24 June 2003 which provided that both parties had agreed not to call her as a witness and stated that she did not believe that she could help and would not devote further time unless required by the court to do so.

11

On 2 March 2009 DEFRA then issued an application for directions concerning the manner in which the Mediator should give evidence. The application was heard on 20 March 2009. DEFRA indicated that they were minded to serve a witness summons on the Mediator and FAL submitted that it was for DEFRA to determine what course to take but that FAL did not intend to be involved in what it considered to be a waste of time.

12

By the end of the hearing on 20 March 2009 the position reached was that DEFRA were going to consider whether to serve a witness summons and that an order was made that any such summons was to be issued out of the TCC and any applications arising out of the summons were to be reserved to me.

13

Subsequently DEFRA served a witness summons on the Mediator on 31 March 2009 seeking her attendance at the trial of the action which is due to commence on 22 June 2009. On 30 April 2009 the Mediator applied to have the witness summons set aside or varied under CPR 34.3 on the basis that:

(1) Her evidence was subject to express provisions of confidentiality and non-attendance pursuant to the Mediation Agreement signed by all parties dated 24 March 2003.

(2) In any event the evidence was confidential and/or legally privileged and/or irrelevant.

14

I now turn to deal with the Mediator's application.

The provisions of the Mediation Agreement

15

The Mediation Agreement contained a number of terms which have now become commonplace in mediation agreements and deal with such matters as the status of communications in the mediation. The Mediation Agreement in this case contained seven clauses and appended, as a schedule, a Mediation Procedure.

16

Clause 6 of the Mediation Agreement which deals with confidentiality provides:

“Each Party in signing this Agreement is deemed to be agreeing to the confidentiality provisions of the Mediation Procedure on behalf of itself and all of its directors, officers, servants, agents and/or Representatives and all other persons present on behalf of that Party at the Mediation.”

17

Paragraph 1 of the Mediation Procedure provides: “All communications relating to, and at, the Mediation will be without prejudice.”

18

Paragraph 7 provides for the exchange of information and provided that:

“In addition, each Party may send to the Mediator and/or bring to the Mediation further documentation which it wishes to disclose in confidence to the Mediator but not to any other Party, clearly stating in writing that such documentation is confidential to the Mediator.”

19

Paragraphs 11 to 13 provide, as follows, under the heading of “Confidentiality”:

“11. Every person involved in the Mediation will keep confidential and not use for any collateral or ulterior purpose:

a) the fact that the Mediation is to take place or has taken place; and

b) all information (whether given orally, in writing or otherwise), produced for, or arising in relation to the Mediation including the settlement agreement(if any) arising out of it,

except insofar as is necessary to implement and enforce any such settlement agreement or to comply with any Order of the Court in any subsequent action.

12. All documents, which include anything upon which evidence is recorded (including tapes and computer discs), or other information produced for, or arising in relation to, the Mediation will be privileged and not be admissible as evidence or discoverable in any litigation or arbitration connected with the Dispute except any documents or other information which would in any event have been admissible or discoverable in any such litigation or arbitration.

13. None of the...

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