"A Veiled Threat Is Still A Threat": Without Prejudice Privilege Lost Due To 'Unambiguous Impropriety' Exception

In a recent judgment¹, the High Court granted an application to admit into evidence that the contents of correspondence marked "without prejudice save as to costs" should be admitted into evidence on the basis that the correspondence contained an implicit threat which amounted to an 'unambiguous impropriety'. This is the first recorded judgment of its kind in Ireland. Arthur Cox LLP acted for the successful applicant.

Background

In the proceedings, the plaintiff alleges that the defendant breached a shareholder' agreement, solicited its employees to work for a competing company and misappropriated intellectual property. As a result, it is claimed that the plaintiff's business has effectively lost all of its value, which it quantifies at over €106 million. These claims are being fully defended by the defendant.