Case Alert - [2018] EWHC 1759 (Ch)
Judge considers without prejudice privilege issues
The main issue in this case was whether a meeting between the
parties was "without prejudice". The judge decided, on
the evidence, that the meeting had not been expressly agreed to be
without prejudice. However, he went on to find that both the
meeting and communications between the parties after the meeting
were without prejudice because they were negotiations aimed at
settlement.
It made no difference that one of the parties did not think that
the meeting was conducted on a without prejudice basis: "The
"without prejudice" rule did not apply by agreement ....
However, the cases show that "without prejudice"
protection of negotiations genuinely aimed at settlement is founded
on public policy as well as on agreement and, in some cases, where
there is no agreement express or implied, rests only on public
policy". It is open to the parties to agree that discussions
are to be open
