There was a time when the law of “Evidence” was taught more comprehensively in many law schools. Contrary to the views held by some, there is a body of law called “Evidence” in civil proceedings; it is not the exclusive preserve of the criminal law (although, things are a bit more forgiving in civil proceedings). “Without prejudice” privilege is itself more a rule of evidence than a form of privilege in civil proceedings and, if lawyers tend to remember one thing about it, it’s that marking a letter “without prejudice” is not conclusive of its status. As is usually the case in civil disputes, substance trumps form.
So it was in the recent case of Poben Consultants Ltd & Ors v Clearwater Bay Golf & Country Club, HCMP 2332/2016, 27 October 2017. The defendant applied to exclude a letter which had been exhibited to an affirmation filed on behalf of the plaintiffs. The letter was written by the defendant’s solicitors to one of the plaintiffs and marked “without prejudice”; it also made reference to a without prejudice meeting between the parties. However, according to the judgment, nothing in the letter appears to have evidenced a genuine attempt to settle one or more of the issues in dispute; indeed, the letter appears to have been an outright rejection of the plaintiffs’ case.
Therefore, the defendant’s argument appears to have relied on the fact that the letter was labelled “without prejudice” and that it was (so the argument went) for the plaintiffs to show that the letter was not deserving of the protection afforded to without prejudice communications.
The court had little difficulty in rejecting the defendant’s claim that the letter was in substance “without prejudice” and in dismissing the application. The legal principles involved are set out in the judgment and in Phipson on Evidence (Chapter 24). In short, while labels can be important, whether a communication is genuinely “without prejudice” is determined objectively at the time of the communication having regard to all the relevant factual circumstances.
Noting the passing reference in the letter to a “without prejudice meeting”, the judgment reassuringly observes that (at para. 21):
“It is almost an inevitable concomitant of such litigation that there will be at least some effort to resolve it, and the intervention of mediation seeks to achieve that. Courts know that takes place but is (sic) wholly unaware of what is said or done under its umbrella.”
Parties intending to write on a “without prejudice” basis should ensure that not only is their correspondence clearly marked as such but that the content evidences a genuine attempt to settle one or more of the issues in dispute. Indeed, the suspicion is that in practice some practitioners often label letters “without prejudice” without much thought to their content.
It is not enough (for example) to reply to another party’s “open” correspondence by simply marking a letter “without prejudice” if the contents do not justify it. Solicitors and their staff (and, in particular, the approved signatories for a firm’s correspondence in accordance with Solicitors’ Practice Direction D – Para. 2, “Signature of post”) would do well to give more thought to the labels that they attach to their correspondence before dispatch.
Editorial Note: Also see summons for leave to appeal against an interlocutory judgment/order, listed for hearing (at the time of writing) on 23 November 2017, HCMP 2332/2016.