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ARTICLE · 17 JANUARY 2025

High Court Considers Without Prejudice Privilege In The Mediation Context

Norton Rose Fulbright Hong Kong
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In Pentagon Food Group Ltd v B Cadman Ltd, the High Court ruled that mediation privilege does not extend beyond traditional without prejudice privilege, and clarified the use of misrepresentation claims and the Unilever Exception to admit evidence from mediation in certain circumstances.

United KingdomLitigation, Mediation & Arbitration
Mark Lightbown
Mark Lightbown

In Pentagon Food Group Ltd and others v B Cadman Ltd [2024] EWHC 2513 (Comm) (Pentagon Food Group), the High Court found that a party to a settlement agreement reached through a mediation was liable for misrepresentation and breach of agreement. The court considered whether a bespoke 'mediation privilege' was required and provided helpful guidance on the existing exceptions to without prejudice privilege.

Background

The case concerned an industrial property known as 'Portland House' (the Property) and followed a string of disputes regarding the Property between the defendant in this case, B Cadman Ltd (BCL), and a commercial tenant, Pentagon Food Group Ltd (Pentagon). Most recently, a claim was brought by BCL against the current claimant, Pentagon (the Fire Claim). The Fire Claim was settled by way of settlement agreement following mediation in January 2022 (the Settlement). A third party, Khan Estates Limited (KEL), was also party to the Settlement.

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