Without Prejudice Rule: High Court Emphasises Narrow Scope Of Exceptions

The High Court has granted an application to strike out certain passages from defendants' witness evidence on the basis that they were protected by the without prejudice (WP) rule and the defendants had not established that any of the recognised exceptions to that rule applied: Ocean on Land Technology (UK) Ltd v Land [2024] EWHC 396 (IPEC).

The decision highlights that: the burden is on the party seeking to establish that an exception to the WP rule applies; and establishing that an exception applies to some part of the WP negotiations will not necessarily mean that protection is lost for the whole of those negotiations.

The decision also emphasises the narrow scope of the exceptions to the WP rule, including the recognised exception where the rule is used to cloak "unambiguous impropriety". It is well established that the exception will not be engaged merely because there is an inconsistency between statements made on an open and WP basis, even where that might