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Associate, London
ReSolution | Dec 2020
not be “fairly justiciable” without disclosure of the privileged statements into evidence. In determining what “fairly justiciable” means, Roth J said: “it means that the evidence is so central to an issue which the party resisting disclosure has introduced that there is a serious risk that there will not be a fair trial if that evidence is excluded”.
In this case, the Claimants’ critical argument was that the Defendants had acted dishonestly and that the Claimants had been unaware of the relevant payments. Roth J held that ”justice clearly demands” that the Claimants should not be permitted to put forward such an argument whilst excluding evidence that they were told of those same facts some five years earlier, because to do so would create a “serious risk” that the court would be misled.
Roth J ‘s decision was also informed by the fact that the statements in question did not relate to the dispute which led to the earlier mediation (they were only ”peripheral” to those issues), and were exclusively statements made by the Defendants who were the same party trying to have them admitted in the present proceedings. Roth J therefore held that admitting the WP material would not risk undermining the public policy justifying the WP rule
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