Admissibility of 'without prejudice' documents (Avonwick v Webinvest)

Admissibility of 'without prejudice' documents (Avonwick v Webinvest)

Avonwick Holdings Limited v Webinvest Limited and Mikhail Shlosberg [2014] EWHC 3322 (Ch)

The Chancery Division has allowed documents marked as 'without prejudice' to be admissible as evidence at the forthcoming trial. In doing so, it held the documents were not covered by the 'without prejudice' privilege as there was no genuine dispute at the time the documents came into being (applying Bradford & Bingley). This judgment is a useful reminder of the key authorities and criteria applied in determining admissibility of documents labelled as 'without prejudice'.

Summary and practical implications

In allowing the 'without prejudice' documents to be admissible at trial, the judge held, among other things:

  • Bradford & Bingley plc v Rashid [2006] 2 All ER (Comm) 951, [2006] UKHL 37Unilever Plc v T V Procter & Gamble Co [2001] 1 All ER 783
  • 'for a document to be inadmissible on the grounds that it is "without prejudice", it must form part of a genuine attempt to resolve a dispute. There needs to be both a genuine dispute to be resolved and a genuine attempt to resolve it. If there is no dispute about a liability, but only a negotiation as to how and when it should be discharged, the negotiations, and documents produced in the course of them, are not covered by the "without prejudice" exception to the admissibility of relevant evidence' (para 19, applying Bradford & Bingley and Unilever). In this case, the correspondence proceeded 'quite clearly on the basis that there [was] an existing

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