CEDR

30 January 2009

Dear

The latest edition of Resolutions magazine is just out:

To read your free copy of Resolutions 43 please click here
 
 
The latest from the courts on Mediation:
 
Farm Assist Ltd (in Liquidation) v Secretary of State for Environment, Food and Rural Affairs
 
Farm Assist (FAL) participated in a mediation with DEFRA on 25 June 2003, which led to a settlement.  In 2007, having (it is assumed) since gone into liquidation, FAL’s liquidator asserted that the settlement agreement which emerged from the mediation had been procured by DEFRA through “economic duress” and should therefore be set aside. 

We shall have to await the full trial of FAL’s claim, if it is ever held and reported, to see how a claim of this kind about a settlement agreement moderated by a mediator in a mediation process might or might not be found to have been induced by economic duress.  Meanwhile Judge Ramsay has considered the question of whether legal professional privilege prevented disclosure to DEFRA of the legal advice tendered to FAL before and at the mediation.  The short answer given is Yes.  The implied waiver of legal professional privilege which arises when a client sues his former solicitor is clearly established by Lillicrap v Nalder and Paragon Finance v Freshfields.

To read the full judgement please click here
©2009 CEDR
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