Careless Talk Costs - You Never Know Who's Reading

When negotiating difficult trust matters, candid correspondence can lower temperatures and enable parties to work constructively to resolve disputes.

One way to share information safely during disputes is the use of Without Prejudice communications. Such correspondence ordinarily attracts privilege from production in court. As a matter of public policy this allows information to be provided to and shared between the parties involved in a dispute without fear that that information might be used against them in court later.

There are, however, situations when a party might wish to disclose Without Prejudice correspondence in court, for example when a trustee might be under a duty to make full and frank disclosure. This tension between protection and duty necessitates careful thinking before corresponding under the cloak of Without Prejudice privilege. To that end a recent Royal Court case has considered the status of Without Prejudice correspondence in the context of