UK: When Will The Courts Order Disclosure Of Without Prejudice Communications

Last Updated: 3 January 2017
Article by Anna Myrvang

Master Clark considered the law on disclosure of without prejudice communications in his recent decision in EMW Law LLP v Scott Halborg [2016] EWHC 2526 (Ch). He concluded that, where the documents were relevant to an issue in dispute, they could be admitted into evidence even though they were subject to without prejudice privilege, because appropriate arrangements could be made to ensure there was no prejudice to the parties who owned the privilege, meaning there was no public policy reason to refuse admission of the documents into evidence.

A disclosure application came before Master Clark in proceedings brought by a firm of solicitors against an individual, Mr Halborg (also a solicitor), to recover unpaid fees in respect of work done under an agency conditional fee arrangement (CFA). The firm had acted as agent for Mr Halborg providing legal advice in connection with a claim Mr Halborg had been engaged to bring against a firm of architects.

The underlying claim was settled pre-trial. The bill of costs included a claim for the agency charges, but these were disputed by the firm of architects in full on the basis that the work was duplicative of that carried out by Mr Halborg.

A dispute then arose between the firm of solicitors and Mr Halborg with regards costs recovery matters, specifically in relation to implied terms within the agency CFA entered into between the firm and Mr Halborg.

EMW applied for specific disclosure from Mr Halborg of various categories of documents relating to the costs recovery in the underlying claim. Master Clark had to consider Mr Halborg's objections to the disclosure application, including on the grounds that documents in one of the categories sought were protected by without prejudice privilege.

The relevant category of documents in which privilege was claimed comprised "correspondence, attendance notes or meeting notes relating to communications between [Mr Halborg] and [the law firm retained by the architects] from 22 July 2011 to date, relating to any discussion, negotiation or settlement of [Mr Halborg's] costs in the substantive claim".

The complication in this case was that any privilege attached to the relevant documents did not belong to Mr Halborg from whom disclosure was being sought, but jointly to the parties to the underlying proceedings. Each of the underlying parties was put on notice of the application for disclosure. The firm of architects did not respond. The underlying claimants (through Mr Halborg) refused to waive privilege and objected to disclosure of the documents, on the basis that disclosure would potentially release the documents into the public domain.

Deciding that the category of documents sought was relevant to the dispute regarding the implied terms in the agency CFA, Master Clark went on to consider the law on without prejudice privilege.

The starting point was the decision of the House of Lords in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 (and which also references the judgment of Oliver LJ in Cutts v Head [1984] Ch. 290), which confirms that:

  • the without prejudice rule governs admissibility of evidence;
  • the rule is founded upon the public policy of encouraging litigants to settle their differences;
  • it applies to exclude from evidence all negotiations genuinely aimed at settlement;
  • however, the rule is not absolute and resort may be had to without prejudice materials for a variety of reasons when the justice of the case requires it. (Master Clark went on to note that the case of Unilever PLC v Proctor and Gamble [2002] 1 WLR 2346 summarises the exceptions to the rule).

Against the background of these legal principles, Master Clark was prepared to order disclosure, for the following reasons:

  • Prejudice to the parties who owned the privilege could be avoided – even if disclosure was awarded and the documents were admitted into evidence, privilege in the documents could still be retained against the rest of the world:
    • The parties to the underlying proceedings were not parties to the current claim: Disclosure of the documents was not being sought in order to use the materials to prejudice the people who owned the privilege.
    • Common interest privilege: It was possible for EMW and Mr Halborg to see the without prejudice correspondence without the people who owned the privilege losing the ability to assert privilege against the rest of the world. Not only the parties who owned the privilege but also Mr Halborg and EMW shared a common interest in negotiations as to the assessment of costs, which entitled them to see otherwise privileged documents.
    • Exclusion from the public domain: Master Clark noted that any prejudice that might be suffered by the privileged material being put into the public domain through reference to it in open court could be prevented by the court making directions under CPR 31.22 or, if necessary, directing that the public be excluded from any relevant part of the hearing.
  • The documents were relevant to an issue in dispute and there was no public policy reason to refuse admission:
    • Master Clark also considered that the exception to the without prejudice rule identified in Muller v Linsley & Mortimer [1996] 1 PNLR 74 applied to render without prejudice material discloseable in the present case.
    • In the Muller case, the court concluded that the issue to be considered by reference to the without prejudice communications was "wholly distinct" from the issue of any admissions made in the negotiations (as recorded in without prejudice communications) being used to the detriment of any party to those negotiations (which is what the public policy underlying the without prejudice rule is designed to protect).
    • As noted above, Master Clark had found as a starting point that this category of materials was relevant to the dispute regarding the implied terms of the agency CFA. A distinction could be drawn between those issues and any admissions in the underlying costs negotiations.

This case is a useful reminder that documents marked without prejudice will not necessarily be protected from future disclosure in all circumstances. The making of an order for disclosure of without prejudice documents does not necessarily mean the privilege is lost in the documents other than for limited purposes and to a limited group of people. The courts have demonstrated a willingness to assist in putting relevant protections in place. Therefore, in an appropriate case, consideration may need to be given to whether, and if so how, disclosure could be made in a way that avoids prejudice to those who own the privilege (provided they agree to the disclosure), rather than raising a wholesale objection to disclosure of all such without prejudice communications.

When Will The Courts Order Disclosure Of Without Prejudice Communications

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 Mondaq.com.

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

Authors
Anna Myrvang
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions