42Challenge to defendant’s contribution after successful mediation

#### 42 Challenge to defendant’s contribution after successful mediation 42 Challenge to defendant’s contribution after successful mediation > > (1) If mediation of a claim results in settlement of the claim, the mediator may, on the application of a defendant who intends to dispute in subsequent proceedings the contribution that the defendant is liable to make to the damages recovered by the plaintiff, require the plaintiff to give evidence on oath before the mediator in respect of any matter that appears to the mediator to be relevant to the liability of any person to contribute in respect of damages payable on the claim. > > > (2) If the plaintiff is to be required to give evidence under this clause, the mediator is to determine the arrangements for the taking of that evidence and advise the parties of those arrangements. > > > (3) That evidence is to be given immediately following the conclusion of mediation unless the mediator determines that the giving of that evidence should be delayed. > > > (4) A defendant who wants a plaintiff to give evidence pursuant to this clause must give notice to the mediator, the plaintiff and each other party to the claim. > > > (5) That notice must be given at least 2 business days before the start of mediation. If the decision to require the plaintiff to give evidence is made after that (including after the start of mediation), the notice may still be given but this constitutes a failure to comply with this clause for the purposes of clause 69. > > > (6) Once the plaintiff has given that evidence, the plaintiff cannot be required to give evidence in proceedings before the Tribunal in respect of the dispute unless the Tribunal is satisfied that a failure by the plaintiff to give the evidence concerned will cause substantial injustice to a defendant. > > > (7) A record of the evidence given by the plaintiff before the mediator is admissible in proceedings before the Tribunal in respect of the dispute. > > > (8) The hearsay rule (within the meaning of the [Evidence Act 1995](/view/html/inforce/current/act-1995-025)) does not prevent the admission of a record of that evidence of the plaintiff or the use of that record to prove the existence of a fact that the plaintiff intended to assert by a representation made in that evidence. > > > (9) For the purposes of this clause, the mediator may— > > > > > (a) require the plaintiff to take an oath or to make an affirmation in a form approved by the mediator, and > > > > > (b) administer an oath to or take an affirmation of the plaintiff. > > > (10) A defendant at whose request evidence is given by the plaintiff under this clause is liable for the costs of, and associated with, the taking of that evidence (including the costs of transcription services and costs for the time of the mediator but not including the costs of other parties). If more than one defendant makes the request, the defendants are liable in equal shares for those costs.