Unambiguous Impropriety May Mean No 'Without Prejudice' Privilege

The High Court has recently confirmed that the protection normally afforded by 'without prejudice' communications will be lost where the communication is unambiguously improper. Our Commercial Disputes team examines the implications of this decision.

It is well established that communications aimed at resolving disputes may be protected from disclosure. These communications often involve making admissions or offers. The protection arises from the application of 'without prejudice privilege'. Communications which are expressed or proven to have been made 'without prejudice' are not generally admitted in evidence. The rule reflects the public interest in encouraging parties to resolve their disputes without resorting to litigation. Protecting the content of negotiations in this way means that parties should not be discouraged or constrained in pursuing negotiations aimed at settlement.¹ A recent High Court decision has addressed whether, and in what circumstances,