“Without Prejudice” – Twosomes and Threesomes

Given the importance of “without prejudice” communications to lawyers and their clients, the decision of the English High Court in Briggs & Ors v Clay & Ors [2019] EWHC 102 (Ch) should be of considerable interest. The general principles that underpin what is (among other things) a rule of admissibility are derived from English common law and are unlikely to vary much in Hong Kong.

The case considers the ambit of the protection afforded by without prejudice communications where one party seeks to produce those communications in different but related proceedings involving other parties.

In Briggs v Clay the court in principle granted the applicants declaratory relief to the effect that the content of the communications in issue was without prejudice and, therefore, was inadmissible in the proceedings; although, the fact of communications was admissible.

The judgment explains the much criticised Muller v Linsley & Mortimer [1996] 1 PNLR 74; distinguishing it on the facts. In so doing, the “Muller exception” to without prejudice communications is kept within narrow confines. For example, it is explained (as best it can be) because the communications in issue in Muller were relevant to the reasonableness of a settlement between party A and party B, which party A had asserted in different but related proceedings commenced against party C (and which party C had challenged).

Importantly, in Briggs v Clay the claim against the applicants, as referred to in the communications, was still to be decided by the courts and, therefore, the applicants had a continuing and legitimate interest in asserting a claim to without prejudice protection. Further, unlike in the Muller case (apparently), the issues in dispute in Briggs v Clay could be determined by the court without disclosure of the without prejudice communications. There was also no good reason in Briggs v Clay to extend the recognised exceptions to the protection afforded by without prejudice communications.

The judgment in Briggs v Clay is underpinned by good and broad policy reasons that, in turn, support the protection afforded by without prejudice communications. While the recognised exceptions to the protection are not closed they only apply in limited circumstances (see, Hollander QC on “Documentary Evidence in Hong Kong”, Chapter 18-021, and “Phipson on Evidence” (19th edition)).

As a general observation, the dynamics of without prejudice protection are more readily understood in the context of a “two party” scenario; namely, the immediate parties to the communications. In such situations there is less scope for confusion or disagreement because both parties are privy to the without prejudice communications and the protection can only usually be waived with both parties’ consent.

Contrasting legal professional privilege with the protection afforded by without prejudice communications, Hollander QC and Phipson make the point that the maxim “once privileged, always privileged” is more straightforward in matters of legal professional privilege. This maxim may not always apply to the protection afforded by without prejudice communications. There are recognised circumstances where the protection does not apply. Practitioners should also be aware of those exceptional circumstances where a third party can seek access to parties’ without prejudice communications or refer to the fact of those communications.

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Senior Consultant, RPC