A case in the High Court, Keith Morris v William Simon Williams [2025] EWHC 218 (KB) dealt with the admissibility of without prejudice correspondence.
The “Without prejudice” Rule
As a starting point in litigation, communications marked without prejudice are inadmissible in court. This is known as ‘without prejudice privilege’.
This rule is in place to encourage parties, so far as possible, to settle disputes without the need for litigation, and to not discourage parties from making concessions which they fear may later harm their position in front of a judge, where the communications are not open for judicial consideration.
Such communications can also be caveated so that the protection only applies in certain circumstances, for example being without prejudice when the issues in the case are being determined, but becoming open for consideration when the issue of costs is considered after (known as: without prejudice save as to costs)
A paramount principle is that the privilege applies to negotiations which are considered to be genuine attempts at settlement.
The facts
Mr Morris, the Claimant, brought proceedings against Mr Williams, the Defendant, seeking to recover damages for personal injuries he allegedly suffered in a road traffic accident said to be caused by the Defendant.
The Claimant’s solicitors sent a letter to the Defendant marked “Without Prejudice – save as to costs”, and within the letter was an admission that the Claimant “was fundamentally dishonest in respect of some of the representations made in respect of his claim”.
The Defendant’s case was that the letter should be admitted as evidence as it fell within the recognised exception to the without prejudice rule, being that the without prejudice privilege was being used to cloak an ‘unambiguous impropriety’.
The Claimant opposed the admission of the letter in the proceedings, arguing that it did not clearly admit to fundamental dishonesty by him.
Decisions for the Court
- Did the letter contain an admission?
The Claimant argued that the letter simply contained proposed terms of settlement – being that the Claimant would admit to fundamental dishonesty (if it was included within a non-disclosure agreement) subject to the other terms of the proposal (payment terms) being agreed.
A finding of Fundamental Dishonesty in proceedings can have severe consequences including the striking out of claims, the loss of cost protections, and potential referral to the CPS for criminal contempt proceedings.
The Defendant contested that the letter was a clear admission that the Claimant had, in some way, been fundamentally dishonest.
The court was with the Defendant, and found that the letter did contain an admission that the Claimant had acted in a fundamentally dishonest way.
- Should the letter be admitted into evidence?
The court found that the letter did fall within the unambiguous impropriety exception; the letter went “well beyond” an acceptance by the Claimant that they had exaggerated their injuries, and fell to be an admission of fundamental dishonesty.
District Judge Dodsworth went on to say that “the certainty that the Claimant’s pleaded case was being put forward on a (at least partly) false basis…is sufficient to bring the exception into play”.
Take home
This Judgment emphasises the importance that without prejudice privilege is not a guaranteed shield to hide behind, particularly if being used to conceal impropriety in proceedings.
It is also a kindly reminder to lawyers and litigants that simply because correspondence is marked “without prejudice” it may still later come to be scrutinised by the court.
If you have a query concerning a dispute, please contact our expert Litigation & Dispute Resolution team by emailing litigation@bishopandsewell.co.uk or by calling (0)20 7631 4141
The above is accurate as at 07 July 2024. The information above may be subject to change. The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis. The information above may be subject to change.
