When Will The Courts Order Disclosure Of Without Prejudice Communications

Master Clark considered the law on disclosure of without prejudice communications in his recent decision in EMW Law LLP v Scott Halborg [2016] EWHC 2526 (Ch). He concluded that, where the documents were relevant to an issue in dispute, they could be admitted into evidence even though they were subject to without prejudice privilege, because appropriate arrangements could be made to ensure there was no prejudice to the parties who owned the privilege, meaning there was no public policy reason to refuse admission of the documents into evidence.

A disclosure application came before Master Clark in proceedings brought by a firm of solicitors against an individual, Mr Halborg (also a solicitor), to recover unpaid fees in respect of work done under an agency conditional fee arrangement (CFA). The firm had acted as agent for Mr Halborg providing legal advice in connection with a claim Mr Halborg had been engaged to bring against a firm of architects.