Admissibility Of "Without Prejudice" Mediation Position Statements Considered In Berkeley Square Holdings V Lancer Property Asset Management Ltd [2021] EWCA CIV 551

• Published date: 17 May 2021
• Subject Matter: Wealth Management, Litigation, Mediation & Arbitration, Wealth & Asset Management, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Littleton Chambers
• Author: Mr Andrew Maguire

The Court of Appeal have upheld Roth J's first instance decision that mediation position statements made during a successful mediation in one of the parties' confidential position papers were admissible in evidence; upholding an order directing that statements made "without prejudice" ("WP") in mediation were disclosable and could be referred to in the Defence.

Link to judgment:http://www.bailii.org/ew/cases/EWCA/Civ/2021/551.html

The Court of Appeal has decided that material, otherwise inadmissible, could be put forward by a party seeking to uphold the settlement where the other party sought to invalidate it, alleging that it was not aware of certain payments at the time. WP information could be pleaded in a Defence to rebut the claimants' contention of ignorance until much later as "misplaced and wrong" [20].

The background facts

The claimants, Berkeley Square Holdings Ltd and others ('the owners'), were offshore companies mainly beneficially owned by H.E. Sheikh Khalifa bin Zayed Al Nahyan, the Emir of Abu Dhabi and the President of the United Arab Emirates, who owned a portfolio of properties in London worth around '5 billion. Lancer Property Asset Management Ltd ("Lancer") managed the portfolio of properties between 2004 and 2017. They dealt with and were instructed by H.E. Sheikh Khalifa's agent and appointed representative, Dr Mubarak Al Ahbabi under powers of attorney granted to him by the owners.

Under a side letter to the management agreement, enhanced fees were payable to Lancer if the values of managed properties increased above a set amount because of Lancer's management. By a deed of variation, the agent was permitted to authorise Lancer to make payments to third parties.

A dispute arose over the first defendant's entitlement to management fees. This dispute was settled shortly after a mediation held on 24 September 2012.

In September 2018, the claimants commenced proceedings against the defendants for their role in an alleged fraud, where it was alleged that the defendants had conspired with the claimants' appointed representative to increase payments made to the defendants, and passed substantial payments to a...