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Family Law

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Court of Protection Practice and Procedure Conference 2016

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01 APR 2015

Where does without prejudice immunity begin? Part 2: mediation and case management (£)

David Burrows

Solicitor Advocate


Where does without prejudice immunity begin? Part 2: mediation and case management (£)
The previous article in this two-part series looked at when without prejudice rule immunity (WPRI) could be said to cover discussions between two people; suggested that the point where WPRI applies was the point where mediation confidentiality applies; and pointed out the present uncertainty of the common law on these subjects at present. This article works through the case study which concluded the previous article. It does this by considering the legal issues which arise from mediation between a married couple, where the parents of one of them had put money into the purchase of their family home. Can WPRI be overridden so that evidence from mediation be put before the court; what is the evidential value of an admission made by the husband’s parents; and how does the proximity rule (considered in the first article) apply here? Even though the chancery issues which arise from all this, can a mediator help to resolve the pre-trial case management issues?

The article starts and ends with the question: is there a useful symbiosis between court case management and mediation; and, can this be developed, even though – perhaps especially though – litigation is inevitable?

The full version of this article appears in the April 2015 issue of Family Law.

Online subscribers can access the full version of the article here.

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