CC-2023-000006 - [2025] EWHC 1439 (Comm)

This judgment resolves an issue as to whether the Defendants are entitled to rely upon without prejudice communications between the parties. The immediate context is that the Claimant has brought a contempt application alleging that the Defendants have failed to comply with an order requiring them to give disclosure of certain categories of documents.

The Defendants contend that the contempt application is an abuse of process by the Claimant. In support of that case, the Defendants want to rely upon certain without prejudice communications sent on behalf of the Claimant. In summary, the Defendants argue that the contents of the without prejudice communications demonstrate that the Claimant used the contempt application improperly to pressurise them into disclosing documents to which the Claimant was not entitled. They submit that this demonstrates “unambiguous impropriety” which justifies removing the without prejudice privilege from the relevant communications.

The Claimant’s response is that the without prejudice communications were genuine efforts at settlement in hard-fought litigation. The contempt application, it is argued, was properly brought and maintained for legitimate reasons (principally to secure compliance with the disclosure order). The “unambiguous impropriety” exception is narrowly applied and not met in this case. The discussions were consensually without prejudice and aimed at resolving the underlying dispute between the parties.

For the reasons set out in this judgment, I have held that the Defendants are not entitled to rely upon the without prejudice communications. As a result, I have not included the detail, and my analysis, of the without prejudice communications in this public judgment, but in a confidential Annex that will be withheld from the public judgment. As I have concluded that the Defendants are not entitled to refer to these communications, the Court must protect them from public disclosure. Although the hearing on 9 May 2025 took place in private (necessarily, for the same reasons), this judgment (minus the Annex) is a public judgment.