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Disclosure: privilege, confidentiality and public interest immunity: Part 1

Date:23 OCT 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David Burrows, Solicitor Advocate:

Disclosure rules in family proceedings are a mixture - sometimes not coherent - of common law (often absorbed from Civil Procedure Rules 1998), case law and rules. Not all of these are necessarily consistent; and it is not clear to what extent certain rules - for example as to full disclosure - apply in the same way to children and to money proceedings. This article is the first in a short series which reviews disclosure, privilege and confidentiality, the without prejudice rule and public interest immunity.

A subsidiary aim of the series is to alert mediators and others involved in dispute resolution to particular issues which may arise for them in mediation. Is there a conflict between such duties of full relevant disclosure as bind the parties, and their and the mediator's duties' of confidentiality? Can a mediator be called to give evidence as to confidential matters if mediation fails, or if a party seeks to use the cloak of privilege to hide dishonesty? What are the limits of confidentiality where children are concerned; or where a mediator fears a crime may be committed?

The full version of this article appears in the November 2013 issue of Family Law.