UK: Negotiating A Settlement: Without Prejudice Privilege

Last Updated: 8 March 2016
Article by Ellen Gallagher

All disputes can get messy and landlord and tenant disputes are no different.  Where the right to occupy a property is critical, either for business or residential purposes, the stakes are high for both sides.  Whatever the strengths and weaknesses of a case, litigation can be stressful and costly and sometimes settling a dispute is the best way forward.

Parties can generally rely on "without prejudice privilege" to carry out full and frank discussions with a view to seeking resolution of a dispute in the knowledge that any admissions made will not be used against them at trial.  Determining what constitutes a genuine attempt to settle which attracts without prejudice privilege can be a minefield for qualified lawyers and it can be particularly difficult for litigants in person to know what the court is and is not entitled to consider.

In the recent case of Suh and Another v Mace (UK) Limited [2016] EWCA Civ 4, the Court of Appeal considered whether alleged admissions made in meetings between one of the unrepresented claimant tenants and the landlord's solicitor were admissible evidence that could be used by the landlord against the tenants.


The tenants, Mr and Mrs Suh, held a 20 year business lease of restaurant premises commencing in May 1999.  The landlord re-entered the property in August 2010 and changed the locks.  In January 2012 the tenants issued proceedings for damages for wrongful forfeiture of the lease.  The landlord counterclaimed for payment of rent arrears.

The trial was listed for 3 days in March 2014 before Her Honour Judge Baucher in the Central London County Court.  In January 2014 Mrs Suh asked to see the landlord's solicitor and arranged to meet her.  In the meeting, Mrs Suh said that the purpose of the meeting was to find out how the case was progressing.  Mrs Suh was not accompanied by a solicitor or other legal advisor.  The landlord then claimed that during the course of the meeting Mrs Suh made admissions that (1) there had been rent arrears (which would have entitled the landlord to re-enter the property); (2) she had not signed certain court documents; and (3) she no longer wished to participate in the proceedings.

Consequently the landlord wished to rely on its solicitor's notes of the meetings with Mrs Suh, which appeared to support its defence and counterclaim.  However, Mr and Mrs Suh denied that the admissions had been made and also argued that, in any case, the notes were covered by without prejudice privilege so the judge was not entitled to see them.

At trial the judge concluded that the communications between Mrs Suh and the landlord's solicitor were not covered by without prejudice privilege.  She held that there had been no genuine attempt to settle the dispute and so the solicitor's notes were admitted into evidence.  In her reasoning, she said:

"...I am satisfied that this was not a without prejudice meeting.  It was not for the purpose of a genuine attempt to compromise a dispute between the parties.  It follows, therefore, that privilege does not attach and, therefore, there can be no question of any waiver."

The trial judge went on to conclude that Mrs Suh had lied in her later denial of the rent arrears.

The tenants' claim for wrongful forfeiture was dismissed and the landlord's counterclaim succeeded.  The tenants appealed.

Court of Appeal

Lord Justice Lewison granted the tenants permission to appeal on the ground that the judge's decision was "unjust because of serious procedural or other irregularity".

In his judgment following the appeal hearing, Lord Justice Vos commented that the trial judge had taken a narrow view about the nature of the meetings between Mrs Suh and the landlord's solicitor and that "a broader view is now authoritatively required".  Lord Justice Vos queried what else the meetings could have been about, if not to try to settle the case.  He went on to say this must have been obvious to any outside observer from the beginning and found that the only sensible purpose for meeting was to seek some kind of solution to the litigation.

The landlord submitted that Mrs Suh was attempting to use the cloak of without prejudice discussions in order to submit lies in her statement.  Lord Justice Vos rejected this argument, saying that Mrs Suh was an "innocent abroad in litigation terms" and there was no evidence to suppose that she knew what "without prejudice" meant, let alone that she was calculating the use of any privilege in order to tell lies to the court.  He concluded that Mrs Suh had done nothing that was even arguably dishonest.

Lord Justice Vos also rejected the landlord's argument that Mrs Suh had waived any privilege by referring to the meetings in its arguments as to why the notes should not be admitted into evidence.  Having considered the context and timing of the events and the tenants' conduct, Lord Justice Vos concluded that it would be "unjust to prevent the tenants from arguing that the admissions made in the interviews would be privileged from production to the court".

The tenants' appeal was allowed and a re-trial ordered.


The dispute in Suh and another v Mace (UK) Limited has been ongoing for over 5 years and it is over 4 years since formal legal proceedings were issued.  The parties will now have to wait until the matter is relisted for a new trial before the dispute finally can be resolved, unless they are able to negotiate a settlement before then.  No doubt the parties will be keen to ensure that any such negotiations clearly take place on a without prejudice basis.

The courts encourage parties to engage in settlement discussions and, in order to do so, acknowledge that they should be able to speak freely about all issues in the dispute.  The case highlights that identifying a genuine attempt to settle a dispute can be difficult.   Lawyers will often preface communications "without prejudice" to clarify the position.  However, if it is clear from the surrounding circumstances that settlement was the purpose of a communication, parties will generally be able to rely on without prejudice privilege so that admissions (or partial admissions) are not produced to the court if the matter proceeds to trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.