“(1) The justification for the privilege attaching to without prejudice communications is not only the public policy of encouraging the negotiated settlement of disputes but also the express or implied agreement of the parties that such communications should be treated as confidential. (2) The fact that a document is marked "without prejudice" is not conclusive as to its status, although it is often a strong pointer. As a general rule a document marked "without prejudice" is privileged unless it was not written as part of a process of negotiation or with the intention of promoting compromise. The test for determining whether the privilege applies is an objective one. As Laddie J held in Schering v CIPLA: "The court has to determine whether or not a communication is bona fide intended to be part of or to promote negotiations. To determine that, the court has to work out what, on a reasonable basis, the intention of the author was and how it would be understood by a reasonable recipient". (3) Once a communication is covered by without prejudice privilege, the court is slow to lift the cloak of that privilege unless the case for doing so is absolutely plain. There are certain exceptional circumstances where it may be permissible to admit into evidence without prejudice communications which are privileged.”
“On the … question whether the report is entitled to the protection of the without prejudice quality, if I may so describe it, which characterized the interview which took place, it is in my opinion abundantly clear that it is. The affidavit of the solicitor, who attended the conference with Mr. Mendoza, a partner in the defendant firm, states: “The interview terminated upon the understanding that. Mr. Mendoza would make inquiries of the possibility and cost of obtaining insurance cover and then come and see me again and let me know what he was prepared to do, after which I would take my client's instructions.”
“… [P]roduction can be ordered of documents even though they may not be admissible in evidence. Nevertheless, if documents come into being under an express, or, I would add, a tacit, agreement that they should not be used to the prejudice of either party, an order for production will not be made. This case seems to me to fall within that principle. This report was clearly made as a result of a "without prejudice" interview and it was made solely for the purposes of the "without prejudice" negotiations. The solicitor for the plaintiff himself says in his affidavit that at the time of the interview it was contemplated that steps such as these should be undertaken.”
“The Court of Appeal held that the report was privileged because it was made as a result, and for the purpose, of without prejudice negotiations. Nonetheless, it is difficult to accept that a report made by a non-party for the purpose of being used to obtain insurance cover is privileged merely because the need for such a report arose in the furtherance of settlement negotiations. After all, the plaintiff in that case would have been at liberty to call the surveyor to testify as to what he found. The decision is better explained on the grounds, which were stressed by the Court of Appeal, that the parties had agreed that they would not use the surveyor’s report in any later proceedings. It is suggested, however, that such agreement should not be inferred merely because the need for such a report arose in the course of settlement discussions.” ii) Phipson on Evidence (20th edition, 2021), at [24-21]: “Rabin looks a surprising decision to modern eyes. Perhaps the answer is that the principle is unobjectionable but the application to the facts is surprising and, in modern times, suspect. Whilst no doubt the parties could reach an express agreement that correspondence not be referred to in court, it is suggested that the court must take great care before implying such an agreement.”
“[34] [TEXT REDACTED] [35] Therefore, in November 2022, TRAC was instructed to carry out R&D Surveys. It undertook several days of surveying in November 2022, while it was still thought that an agreement may be reached (which would have such surveys as an essential requirement of them). By January 2023, resolution appeared much less likely and the WP Negotiations had stopped, at least for the time being. However, I understand that Schroders took the view that this had been viewed as fundamental for the Defendant, and so the surveys were continued with in January 2023. Although the negotiations had broken down, they had carried on in a stop-start fashion for about a year, and I am told by Schroders that Schroders (and therefore the Claimants) were well aware that their quickest route to a functioning stair-core pressurisation system was to get the Defendant back on site – which meant being prepared and able to provide these surveys in the course of and as part of the WP Negotiations. [36] Survey reports were then provided to the Claimants as and when they were finalised, which was generally at the end of January and the early party of February 2023. Of course, in mid-February 2023, the Contract was terminated. This said, termination did not necessarily preclude a negotiated settlement, and I understand from Schroders that that was its position at the time, given what it appreciated about the realities of getting another contractor in as opposed to getting the Defendant back (i.e. that it would be more difficult, costly, and would take longer). [37] Given the above, the Claimants' position is that the TRAC R&D Surveys are subject to the same without prejudice privilege as the WP Negotiations ….”
“[5] [The Trustees] were preparing to instruct the TRAC R&D Surveys in December 2022 [TEXT REDACTED] because the Project needed to be restarted as soon as was realistically possible. [TEXT REDACTED] [6] I am aware that the TRAC R&D Surveys were then instructed in January 2023, and that, at this time, the [Trustees] were still hopeful that a resolution could be reached which would bring the Defendant back to site to complete the Works. …”
“We did this knowing that the Defendant had made such surveys, commissioned by us, a pre-condition of recommencement and settlement. At that time, although it looked less likely than in October 2022, we still thought that a settlement might be reached.”
“… the TRAC R&D Surveys are in a materially identical position to the report in Rabin v Mendoza where there was an understanding in the course of without prejudice negotiations, and the report was “obtained in pursuance of that understanding”
“[1] We refer to the Defendant's Disclosure Requests at Annex 2 to the Order of the Court dated5 April 2024 . [2] Request 2 seeks disclosure of "Documents showing whether and when the Trustee carried out further R&D survey(s) after8 December 2021 and a copy of any such survey(s)". [3] All documents relevant to Request 2 are privileged, and pursuant toCPR 31.19 the Claimants are entitled to and do withhold these documents from inspection. [4] Notwithstanding the above, as the Defendant has expressly requested disclosure of these documents, in the interests of transparency, the Claimants are willing to provide access to these documents to the Defendant subject to the following conditions: [4.1] these documents are provided on a strictly without prejudice basis and without any waiver of privilege; and [4.2] the Defendant agrees that these documents will not be used or relied upon in any way in these Proceedings. [5] Copies of these documents can be accessed at the following link: [electronic link and password]. [6] Copies of these documents can be accessed at the following link: [electronic link and password set out]. [7] For the avoidance of doubt, by accessing the link above, the Defendant confirms it agrees with and will abide by the terms at paragraph 4 above.”
“the Claimants maintain that these documents are privileged, and it is not open to the Defendant to seek to make its own assessment as to whether such documents can be relied upon in these Proceedings.”
“Briggs accessed the documents and is bound by the terms on which they were offered. The documents were provided under an express without prejudice cloak, and there can be no doubt that they were only provided on a without prejudice basis. They are therefore protected by the rule, and its foundation in the express agreement of the parties ….”