Without prejudice communications—the exclusionary rule, exceptions and waiver of privilege

21 Mar 2019 | 5 min read

In Briggs v Clay, [2019] EWHC 102 (Ch) the court examined the policy underlining without prejudice privilege, and the circumstances in which implied waiver, or an exception to the rule excluding such communications from evidence, may arise. In declaring the content (but not the fact) of certain without prejudice communications to be inadmissible, the case is a timely reminder of the scrutiny with which courts will approach attempts to displace the privilege. Danielle Carr, Senior Associate at SCA ONTIER LLP considers the judgment and its implications.

What are the practical implications of this case?

The case demonstrates the high bar to be met before the court will depart from the usual exclusionary rule and permit communications protected by without prejudice privilege to be admitted in evidence.

In particular, Fancourt J was persuaded neither that there had been a waiver of the privilege (as the party asserting the privilege had not referred to or deployed the content of their without prejudice negotiations and it would not be unjust for them to insist on protection of the rule)—nor that an exception to inadmissibility (see below) applied. In acknowledging that the trial judge may have an incomplete picture where no exception applies, the court considered this an inevitable consequence of such an exclusionary rule of evidence, justified by broad policy considerations and the parties’ implied agreement that their negotiations would be inadmissible in evidence.

Importantly, the case (involving a careful review of relevant authorities) provides a principled path for approaching the issue. It is a timely reminder to practitioners that: (i) implied waiver of without prejudice privilege will not be lightly inferred—and (ii) the exceptions to the usual rule of inadmissibility must be of the same character or a principled and incremental extension of an existing exception.

What was the background?

In an earlier Part 8 claim, it was held that various deeds which Aon prepared for the Gleeds pension scheme (the Scheme) were invalidly executed and of no effect. Permission to appeal was granted and relevant parties then reached agreement on a compromise of the appeal (the Approved Settlement).

In these proceedings, the participating employers and the trustees of the Scheme alleged professional negligence as against: Aon (the Scheme advisors)—and Gowling WLG and Mr Newman QC (the Lawyers). Further, Aon alleged that, in failing in the Part 8 proceedings or negotiations leading to the Approved Settlement to argue that certain employees were not part of the Scheme (the Participating Employer Argument), the Lawyers were negligent and this was a new intervening act that broke the chain of causation between any liability of Aon for the losses incurred. The Lawyers denied liability or breaking any such chain of causation. The Lawyers sought to deploy certain without prejudice communications including between/on behalf of the claimants and Aon in negotiations leading to the Approved Settlement and in an attempt to settle this claim. They did not seek to rely on the communications between them and Aon’s lawyers for the truth or falsity of their contents, or for any admissions, but rather so the trial judge could see the extent to which Aon’s lawyers were involved and (it was said) in as good a position as the Lawyers to raise any Participating Employer Argument.

In this application, Aon sought a determination that the fact and content of the without prejudice material was inadmissible in these proceedings.

What did the court decide?

Fancourt J found the content of the without prejudice communications was subject to without prejudice privilege and inadmissible, but given its relevance to resolution of issues, the ‘fact’ of it was not.

The court held that as long as without prejudice privilege is not being abused, the communications will normally be excluded from evidence. The rule is designed broadly in its effect, and the exceptions to it are narrow, should be scrutinised closely and (while the list is not closed) ‘must be of the same character or a principled and incremental extension of an existing exception.’ In this case, treating the contents of the communications as admissible would create an exception with a ‘considerably different character’ (ie a broader exception where the interests of justice are said to require it). Further, Aon had not (simply by making the allegations against the Lawyers) waived its privilege in the communications, nor has it raised an issue that cannot fairly or justiciably be tried without admitting its without prejudice negotiations. The fact that Aon at one stage offered mutually to give up privilege in the communications did not mean the without prejudice communications should be treated in any other way, given no agreement was reached and such waiver cannot be unilateral. Indeed, the court was particularly conscious that the very claim against Aon that was being negotiated in the without prejudice negotiations is pending, and Aon have a legitimate continuing interest in the broad protection conferred by the without prejudice rule.

The court similarly declined to take what at first seemed an ‘attractive course’ of redacting the without prejudice material. It found there was ‘no definitive map of the surgery to be performed to achieve the objective,’ it tends to undermine the underlying public policy and what was proposed really amounted to admitting the communications generally save for admissions or implied admissions (giving effect to the now discredited view that the without prejudice rule should only protect admissions). Accordingly, the content of the without prejudice communications were held inadmissible.

However Fancourt J held the ‘fact’ (but not the content) of the without prejudice communications to be admissible. This would enable the Lawyers to establish there were communications with Aon when the relevant compromise was being sought (which may be relevant to the new intervening act issue and apportionment of responsibility) and to prevent the trial judge (in relying only on the open correspondence) being inadvertently misled about the extent of such contact.

Case details

Court: High Court, Chancery Division

Judge: Fancourt J

Date of judgment: 25/02/2019

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