Case Alert - [2018] EWHC 1759 (Ch)
Judge considers without prejudice privilege issues
The main issue in this case was whether a meeting between the parties was "without prejudice". The judge decided, on the evidence, that the meeting had not been expressly agreed to be without prejudice. However, he went on to find that both the meeting and communications between the parties after the meeting were without prejudice because they were negotiations aimed at settlement.
It made no difference that one of the parties did not think that the meeting was conducted on a without prejudice basis: "The "without prejudice" rule did not apply by agreement .... However, the cases show that "without prejudice" protection of negotiations genuinely aimed at settlement is founded on public policy as well as on agreement and, in some cases, where there is no agreement express or implied, rests only on public policy". It is open to the parties to agree that discussions are to be open or to jointly waive the protection in subsequent litigation, but neither of those options was taken up here.
On the facts, the judge also concluded that no exceptions to the rule applied. In relation to the exclusion which applies where an issue has arisen as to whether a "concluded compromise agreement" (as per Robert Walker LJ in Unilever v Proctor & Gamble [2000]) has been reached, the judge commented that "Robert Walker LJ is not writing statute law when setting out these exceptions" and so the exception applies to "any concluded and legally enforceable agreement".
COMMENT: This decision follows the Court of Appeal's decision in Muller v Lindsey & Mortimer [1994] which held that the WP rule has two justifications: (i) the public policy of encouraging parties to negotiate and settle their disputes out of court and, (ii) an implied agreement arising out of what is commonly understood to be the consequences of offering or agreeing to negotiate without prejudice. Accordingly, it was held that even if neither party wanted the privilege to apply, it can still apply just by virtue of the fact that the parties are negotiating (in the absence of an express agreement to the contrary).
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