Claim No: IP-2021-000080 - [2024] EWHC 396 (IPEC)

The Claimants object to three paragraphs of Mr Gowland’s evidence as expert, rather than fact, evidence.

Paragraph 14 describes the life cycle of lobsters. The description is said to be scientific expert evidence which should not be given by a witness of fact. The Claimants say that to find otherwise would be unfair, potentially leading to the need for cross-examination of two witnesses on technical issues.

Paragraphs 48 and 49 are objected to on the basis: (i) that they address technical issues such as the functioning and age of technology; and (ii) that they are not evidence for which permission has been given by reference to the list of issues.

Mr Harris submitted that Mr Gowland was doing no more than explain what he has done (paragraph 14); and what he and Mr Land did, and their underlying thought processes (paragraphs 48 and 49). Those passages are, in his view, less open to objection than paragraph 25 of Mr Cadman’s evidence discussing ‘improvements’.

This is the type of dispute about evidence which should be avoided where possible in IPEC. There is always a balance to be struck between trimming the evidence before trial to avoid unnecessary disputes at trial (and the unnecessary costs of dealing with extraneous material during trial preparation), and the costs and time required to prepare, bring and argue applications. Expanding applications to cover a range of relatively minor issues, taking up court and party time should be avoided.

Paragraph 14 of Mr Gowland’s evidence explains, from Mr Gowland’s experience, how lobster hatcheries function. It sets the scene briefly for the paragraphs which follow. While scene-setting should be limited, it cannot be completely avoided if written evidence is to be coherent. Leaving this short passage in the fact evidence will not materially disadvantage the Claimants as long as the single expert gives evidence on the matters technically relevant to the issues in dispute at trial. The trial judge will be able to direct what cross-examination is appropriate.

Paragraphs 48 and 49 also need to be seen in context. They are part of a passage explaining Mr Gowland’s perception of what he and Mr Land sought to do and the underlying considerations they had in mind. Some of what is objected to repeats material which already forms part of Mr Gowland’s evidence (for example, the use of upwelling technology by MAFF in the late 1970s is referred to in paragraph 47 (2)) or explains what he and Mr Land had previously done.

There is no basis to object to object to the whole of those paragraphs. While Mr Gowland’s evidence comments on the attributes of the Aquahive and the Lobster Cube at lines 5 to 10 of paragraph 49 and in the last two sentences of that paragraph, this is in the context of explaining from his perspective the issues that he and Mr Land sought to resolve. The trial judge will be able to distinguish between the explanations of Mr Gowland and expert evidence. Trial counsel will doubtless take a view of what cross-examination is appropriate with guidance from the trial judge.

This aspect of the Claimants’ application is dismissed.

Apart from the discrete issue on expert evidence, the disputes over the Defendants’ evidence often involved several separate objections to a single document or passage. This requires a careful assessment of the test to be applied to each objection. I have dealt above with arguments based only on relevance. The remaining objections are: (i) certain types of evidence are not admissible to assist in contractual construction; and (ii) evidence incorporating or discussing without prejudice material is not admissible unless it is within an exception to the without prejudice rule.

Mr Reed submitted (i) that the subjective opinion of a party about the meaning of a particular clause is inadmissible as evidence on the construction of that clause; and (ii) that draft agreements and related discussions between parties during negotiations are ordinarily inadmissible in evidence. Mr Harris said little about this issue in his skeleton argument, other than that it should be a matter for the trial judge. Neither party engaged substantively with the law during the hearing.

Ms Steggles’ evidence stated that some passages of the Defendants’ evidence served only to comment on draft materials or to provide the subjective views of a party on construction and identified the passages in question. Mr Pountney’s comments on those passages were, in summary, that the passages objected to were either: (i) part of a full and coherent account of matters as the witness understood them; or (ii) relevant to interpretation of the contractual relationship.

While neither party addressed the cases on contractual construction, they are well-known and the main principles relevant to this application are clear:

In brief, evidence relied on to show one or other or both parties’ intentions as to, or subjective understanding of, the meaning of a contract or part of it is inadmissible.

Pre-contractual negotiation materials may be relied on to show the overall aim of a transaction or its genesis. They may also be relied on to establish a relevant background fact known to both parties, but not to establish the specific meaning of provisions in the contract.

In the light of the above, I will exclude from evidence any passage which goes only to the subjective understanding of a party as to the meaning of a contractual provision (contrary to (i) and (ii) above): namely, paragraph 25 and paragraphs 94 (c)-(i) of Mr Land’s evidence (insofar as those passages remain in evidence) and paragraph 32 of Mr Gowland's evidence.

The Claimants’ position is that Mr Land’s witness statement refers to the content of without prejudice communications and exhibits such communications. As the application of the without prejudice rule is automatic, material within the scope of the rule and not within one of the exceptions must be excluded.

The Defendants accept that the material identified by the Claimants is covered by the without prejudice rule. They assert that it is nevertheless admissible because it falls within one or more of the recognised exceptions to that rule. The exceptions relied on by the Defendants are that:

Mr Harris submitted that if the Defendants were successfully to establish that any exception to the without prejudice rule applied to any part of the without prejudice material, then all of that material would be admissible in evidence. Mr Harris relied primarily on the following passage from Unilever in which Robert Walker LJ was considering the practical effects of the without prejudice rule:

As I understood his argument, Mr Harris concluded that because the inclusion of parts of without prejudice correspondence was not regarded as practical, with the consequence that admissions clearly covered by the rule and other aspects of the without prejudice correspondence in that case should be dealt with as a whole and excluded, a similar approach should be taken when parts of without prejudice correspondence are deemed to be admissible meaning that all without prejudice materials would then be included and fall to be considered as part of the admissible evidence. Mr Harris submitted that this interpretation was supported by Muller, referred to in the judgment of Robert Walker LJ.

Mr Reed stated that Mr Harris’ view was clearly incorrect and arose from a misreading of the authorities, not least the general concern to avoid undermining the without prejudice rule.

In Muller, Swinton Thomas LJ reiterated the statement of Lord Griffiths in Rush & Tompkins that:‘It would, as a matter of generality, place a serious fetter on negotiations ... if the parties knew that everything that passed between them would ultimately have to be revealed’,and then continued ‘However, different considerations apply to the present case.’

The passage from Unilever on which Mr Harris primarily relies does not establish a general rule that once any part of a body of materials subject to the without prejudice rule falls within an exception then all without prejudice material loses protection. The second half of that passage sets out clearly the concerns that would arise if the protection of the without prejudice rule were to be too easily or too broadly removed. The approach contended for by Mr Harris would mean that parties would be greatly constrained when trying to compromise litigation. If any slip might mean the loss of protection, this would certainly lead to a situation where ‘Parties cannot speak freely at a without prejudice meeting if they must constantly monitor every sentence, with lawyers or patent agents sitting at their shoulders as minders.’

This view is supported by Ofulue v Bossaert[2009] UKHL 16 (Ofulue). There, Lord Walker considered the implications of Rush v Tompkins [1989] AC 1280 and Lord Griffiths’ recognition that the without prejudice rule is not absolute, but subject to exceptions when justice demands it. Lord Walker stated ‘As a matter of principle I would not restrict the without prejudice rule unless justice clearly demands it.’[57].

I conclude that the various exceptions relied on must be applied to the without prejudice materials on their individual merits, subject only to the possibility that a series of related materials may be covered by the same exception.

As it is the Defendants who seek to rely on the exceptions to the without prejudice rule, they bear the burden of showing that an exception applies.

During oral submissions, Mr Harris did not engage in detail with the substantive test but his written skeleton cited the portion of the Judgment of Roth J in Berkeley Square Holdings Ltd and ors v Lancer Property Asset Management Ltd and ors [2020] EWHC 1015 (Ch) (Berkeley Square) which summarised the authorities. Mr Harris relied on the judgment of Robert Walker LJ in Unilever:

Mr Reed submitted that any allegation of unambiguous impropriety needed to have been made in evidence. The evidence served by the Defendants on this point is discussed below. Mr Reed referred me to the judgment in Holyoake in which the key issues as identified by HHJ Hodge [2], were allegations of tortious conspiracy carried out by unlawful means including fraudulent misrepresentations, duress, intimidation, undue influence, extortion and blackmail. The defence was that the claims were entirely without foundation and a ‘shakedown’. The scope of the unambiguous impropriety exception, which was referred to as ‘well-established and uncontroversial’ was discussed from [18] onwards. It included at [19] a reference to the passage from Unilever,cited above.

Mr Reed relied on [22]-[24] of Holyoake. He submitted that these paragraphs (which discuss the previous judgment of Lord Justice Rix in Savings & Investment Bank Limited v Fincken[2003] EWCA Civ 1630) (Fincken) showed that the unambiguous impropriety exception should not be widely applied. In particular, he submitted that:

Mr Reed submitted that without prejudice material may be admitted as evidence only if the party relying on the without prejudice rule was acting in a manner which was utterly improper and abusing the rule by seeking to keep the improper conduct from the Court. He further submitted that statements made during negotiations or when seeking to settle litigation would need clearly to go beyond what is proper to establish the unambiguous impropriety exception.

Having reviewed the authorities, I agree with Mr Reed’s submissions on the scope of the exception. In summary:

Neither advocate addressed the legal test for waiver in detail. I understood Mr Harris to rely on Lord Justice Leggatt’s judgment in Muller as authority that where a party has put in evidence something upon which it relies to establish a specific pleaded allegation, that party has waived any privilege in the without prejudice communications which surround the document relied on. The passage on which Mr Harris relied reads: ‘In any event, partial disclosure of privileged documents is a concept as implausible as the curate’s egg. I consider that production of the letter before action and of the compromise agreement impliedly waived any privilege that might exist in relation to all the other documents relating to settlement.’per Leggatt LJ, Muller,penultimate paragraph.

Mr Reed submitted that Muller was a specific ruling in the circumstances of that case, which did not establish any general principle and that the passage relied on by Mr Harris must be considered in context. He further submitted that privilege (including the protection of the without prejudice rule) cannot be unilaterally waived. In Mr Reed’s submission, this means that for waiver to occur the waiving party must itself have deployed without prejudice material and the other party must have consented to the use of that material and deployed further without prejudice material in response.

Mr Reed relied on the discussion of waiver generally, and Muller in particular, in Thanki on The Law of Privilege. Paragraph 7.42 gives an overview of waiver of without prejudice protection. That overview is in line with Mr Reed’s submissions. Paragraph 7.44 suggests that Muller does not, properly understood, relate to waiver at all but rather to an exception to the without prejudice rule. Thanki goes on to say that to the extent that Property Alliance Group Ltd v Royal Bank of Scotland Plc [2016] 1 WLR 361 (Ch) might be said to suggest that a party waives privilege merely by putting in issue a matter to which a privileged document may be relevant, it is inconsistent with authority and should be regarded as wrongly decided, citingBerg v IML London Ltd [2002] 1WLR 3271.

The disputed material in Muller related to without prejudice communications leading to a settlement. The settlement agreement was then deployed in subsequent litigation arising from the same events but involving a different party as defendant. The claimant party relied on the settlement agreement as evidence of reasonable mitigation of loss. That party refused to disclose materials relating to that settlement, despite having put its reasonableness in issue in a dispute with a third party. The documents leading to the settlement agreement were held to be relevant in the subsequent dispute because, in the words of Leggatt LJ, ‘... the plaintiffs rely not only on the fact of the settlement agreement, but also on the reasonableness of it.’ and if disclosure were to be withheld in those circumstances ‘... public policy might be used as a guise for concealing what happened in the earlier action and that might result in double recovery. It would be inequitable not to order discovery.’

Muller does not establish that a party seeking to enforce the terms of an open settlement agreement, and pleading those terms, waives the without prejudice status of documents relating to the negotiation of the settlement.

In summary, documents within the scope of the without prejudice rule and comments on those documents in evidence will fall within the waiver exception only if the Claimants have deployed without prejudice material in their pleadings or evidence to advance their case on the merits.

Mr Harris referred to a passage from the judgment of Roth J in Berkeley Square to establish the basis for what he referred to as ‘the Oceanbulk exception’. Roth J explains: ‘In Oceanbulk Shipping, the Supreme Court accepted as correct the parties’ recognition that another exception was rectification’. [45] and ‘In that case, the Supreme Court held that an exception would also apply to admit objective facts which emerge during the course of WP negotiations which form part of the factual matrix relevant to the correct interpretation of a contract.’ [46]. Only the ‘interpretation exception’ is relevant here.

Mr Harris relied particularly on paragraphs [36]-[40] of Oceanbulk. He submitted that the exception would apply if the without prejudice material was necessary to allow the court to understand an objective fact going to the factual matrix surrounding a contract. He accepted that the exception would reflect the relevant authorities on construction and extend only to those parts of any without prejudice material that established the objective factual matrix.

Mr Reed accepted that Oceanbulk involved an incremental expansion of the existing exception developed by Walker LJ in Unilever. He noted that in Berkeley SquareRoth J explained that Lord Clarke saw this as necessary to avoid introducing, ‘“... an unprincipled distinction” between that kind of case and the case of rectification or the first exception identified by Robert Walker LJ in Unilever (i.e. to determine whether an agreement had been reached).’[46]. Mr Reed cautioned against further expansion and submitted that the exception must be applied only where the material that would be admitted would be of ‘significant probative value’, relying on Lord Clarke’s summing up in Oceanbulk, ‘... the interpretation exception should be recognised as an exception to the without prejudice rule ... because ... justice clearly demands it. ... I would, however stress that I am not seeking either to underplay the importance of the without prejudice rule or to extend the exception beyond evidence which is admissible to explain the factual matrix ... . In particular, nothing in this judgment is intended otherwise to encourage the admission of pre-contractual negotiations.’[46].

Mr Reed also referred to Lord Phillips’ short summary of the principle to be derived from Oceanbulk: ‘When construing a contract between two parties, evidence of facts within their common knowledge is admissible where those facts have a bearing on the meaning that should be given to the words of the contract. This is so even where the knowledge of those facts is conveyed by one party to the other in the course of negotiations that are conducted without prejudice.’ [48].

Finally, Mr Reed submitted that the context was important when seeking to understand the scope of the exception in Oceanbulk. He noted that the facts said to be within the common knowledge of the partiesand relevant to construction formed part of the pleadings and were summarised by the parties in the agreed statement of facts and issues. There could be no doubt that they were relevant to the trial court’s task. He submitted that caution is required in relaxing the protection of the without prejudice rule where it is not clear that the materials are relevant to the pleaded issues or that they will be of real probative value when construing the contract.

In summary, both parties recognised the Oceanbulk exception and agreed broadly on its scope. Mr Reed stressed the need to apply it cautiously in the light of the guidance given in the judgments of the Supreme Court in that case itself and, more generally, by the courts when applying exceptions to the without prejudice rule. Oceanbulk establishes:

The following key considerations flow from the discussion of the law above:

The hearing would have been more productive if the Defendants had been clear in advance that the application of the without prejudice rule was not contested. The Defendants should also have identified in advance the exceptions to that rule on which they intended to rely and how. Where allegations as to unambiguous impropriety or waiver were to be relied on, the factual basis should have been clearly set out in evidence and the legal analysis explained in the Defendants’ skeleton argument. This would have helped in understanding the Defendants’ position before and during the hearing. It would also have enabled Mr Reed to devote more time to the relevant exceptions in his skeleton argument and to be better prepared to assist the Court during the hearing.

The without prejudice objection to portions of Mr Land’s evidence has been live since at least March 2023. The Claimants’ evidence in support of their application was served on 18 September 2023 and the Defendants’ evidence in reply on 26 September 2023. There has been ample time for the issues to be better defined so as to make efficient use of Court resources. It is regrettable that the Defendants did not make the Claimants aware in advance that their original position, disputing the application of the without prejudice rule, would not be maintained.

The evidence served by the Defendants did not explain how any exception would in practice apply to specific evidence nor how the exclusion of that evidence would prejudice the Defendants. Mr Pountney’s witness statement explained only that the paragraphs and documents relied on were relevant to Issues 2 (patent validity), 5 (breach of Clause 7.5 of the settlement agreement) and 6 (trademark infringement) and ‘either does not properly fall within the scope of the ‘without prejudice’ rule, or alternatively falls under one of the exceptions to the ‘without prejudice’ rule.’

Mr Harris’ written skeleton was more informative (although it still did not make clear that the application of the without prejudice rule was accepted). It indicated that unambiguous impropriety; waiver; and the Oceanbulk interpretation exception all applied to much of the without prejudice material relied on. During oral argument, Mr Harris discussed the particular exceptions but, in the time available, was unable to explain how each exception might apply to each piece of without prejudice material.

The evidence served by the Claimants helpfully listed and summarised the paragraphs of Mr Land’s evidence objected to under the without prejudice rule. The colour coded version of the witness statements prepared by the Claimants’ solicitors also helped identify which passages were objected to, and for what reason. The Claimants’ evidence did not engage with potential exceptions.

Mr Reed’s written skeleton concentrated on whether the materials in issue were within the without prejudice rule. Having had sight of Mr Harris’ skeleton and therefore with a greater understanding of the Defendants’ position, Mr Reed’s oral submissions engaged substantively with the various exceptions, which was helpful.

To recap, to fall within the exception, it is necessary to show that the without prejudice rule is being used to cloak wholly improper conduct and the possibility of perjury will not suffice. Conduct or statements which do not go beyond the bounds of what is to be expected in negotiation will not fall within the scope of the exception.

The passages of evidence containing without prejudice material which Mr Harris identified as covered by the unambiguous impropriety exception were:

Mr Reed submitted that the documents in (i) did not demonstrate any impropriety but were entirely normal in the context of a negotiation seeking to settle a dispute. His position on the documents in (ii) was that they did not expose Mr Cadman to the risk of perjury; that there was no clearcut inconsistency between Mr Cadman’s statements in those documents and his trial evidence which was not explicable; and that even if some ‘hard-edged’ inconsistency could be identified, it would not fall within the exception unless seeking to cloak it under the without prejudice rule was itself abusive, requiring ‘truly exceptional and needy circumstances’.

Having reviewed that material in its context, I conclude that neither Mr Land’s evidence commenting on the documents referred to above, nor any of the underlying documents are covered by the unambiguous impropriety exception. The materials in (i) go no further than would be expected when seeking to settle a dispute. Those in (ii) do not satisfy the requirements discussed in Holyoake,applying Fincken.

The Defendants’ evidence did not identify which documents or evidence were said to be excepted through alleged waiver or how the waiver was said to arise.

Mr Harris’ skeleton argument identified waiver as relevant to pages 188-200 Exhibit RL1, referred to at paragraphs 73-82 and 84-85 of Mr Land’s witness statement; and the emails at page 196 of Exhibit RL1, referred to at paragraphs 81-82 and 84-85 of Mr Land’s witness statement. During oral submissions, Mr Harris stated that the Claimants had raised issues to which the without prejudice material was relevant, particularly by relying on the Settlement Agreement in paragraph 14 of the Particulars of Claim and in Mr Cadman’s related evidence. He submitted that by doing so the Claimants had waived without prejudice protection.

Mr Reed submitted that the protection of the without prejudice rule would have been waived only if the Claimants had deployed without prejudice material in their pleadings or evidence to advance their case on the merits. While some of the without prejudice materials might, in general terms, be relevant to some of the issues raised in the pleadings or evidence, that was not sufficient to establish a waiver. Mr Reed’s position was that neither the pleadings (in particular paragraph 14 of the Particulars of Claim as amended) nor the paragraphs from the witness statement of Mr Cadman referred to by Mr Harris (essentially paragraphs 31-34) refer directly or indirectly to without prejudice material.

The Settlement Agreement is open. As it is the Settlement Agreement which is relied on in the Claimants’ pleading, Mr Reed submitted that there is no waiver of protection. Further, as Mr Cadman’s evidence neither refers to nor relies on any without prejudice material Mr Reed submitted that there is no waiver there either.

In the light of my summary above of the relevant legal principles, I do not accept Mr Harris’ submissions. He has not identified authority supporting his assertion that merely putting something in issue waives without prejudice protection in any document relevant to that issue. Such a position would mean that as soon as the interpretation of any agreement was placed in issue between the parties to that agreement, any protection under the without prejudice rule for all the underlying negotiations would be lost merely because they are in some way relevant to it.

As I understood Mr Harris’ written skeleton, his position is that the objective facts known to both parties which form part of the factual matrix relevant to the interpretation of the Settlement Agreement and which are capable of being established by the without prejudice material discussed in Mr Land’s evidence and the related underlying documents are: (i) the First Claimant was not a proper party to the Settlement Agreement; (ii) the inclusion of various companies on the front page of the Settlement Agreement was improperly imposed on Mr Land; (iii) the date on which Mr Land commenced his employment with Cadman Fine Wines; and (iv) the scope of the intellectual property covered by clause 7.5 of the Settlement Agreement.

During oral argument, Mr Harris submitted that Oceanbulk applied because the without prejudice material would help the trial judge understand the relationship between the parties, which was relevant to the interpretation of the contract. His position was that without the inclusion of the material relied on, which went to the overall factual matrix, the judge would not have sufficient evidence to enable the relationship between the parties to be understood. His submission was not precise as to which facts known to both parties could be established by particular passages of the without prejudice material.

Mr Reed’s primary position was that several of the matters referred to by Mr Harris simply were not relevant to the issues to be decided at trial.

As stated above, I do not regard it as appropriate to take a definitive position on the scope of the issues to be dealt with at trial. I therefore proceed on the basis that the Defendants’ position is correct. If I conclude that some or all of the without prejudice material falls within the Oceanbulk exception in relation to one of the disputed issues, that material can be redacted from one version of the witness evidence but included in an alternative version to be provided to the trial judge as appropriate.

Mr Reed further submitted that none of the material in any event satisfied the requirements of the limited exception provided by Oceanbulk,bearing in mind that it is for the Defendants to establish that exception applies; that it must be applied restrictively; that only real probative value justifies the admission of without prejudice material; and that such material must, in any event, be evidence of a relevant background fact known to both parties.

Mr Reed submitted that none of the material which Mr Harris contended to be covered by the Oceanbulk exception went unambiguously to a relevant background fact known to both parties. To the extent that the material could be said to be relevant to any facts, it was not of significant probative value.

I have reviewed the without prejudice material referred to in the witness statement of Mr Land. I agree that it is broadly relevant to the context surrounding the conclusion of the Settlement Agreement. However, I do not agree that it satisfies the requirements for the Oceanbulk exception.

It is not necessary to rely on the without prejudice material to establish the fact of an employment contract between Mr Land and Cadman Fine Wines. Mr Land’s evidence refers to it in several passages not covered by the without prejudice rule. Despite the fact that Mr Cadman’s evidence does not refer to Mr Land’s employment by Cadman Fine Wines, preferring to discuss Mr Land’s engagement with various related entities in broad terms, the existence of the employment contract is not disputed. Indeed, its existence is recited in the preamble to the Settlement Agreement.

Several companies are listed on the front page of the Settlement Agreement. That is clear on the face of the document. How that came about is not an objective fact known to both parties. The Oceanbulk exception does not permit without prejudice material to be deployed to explore the underlying issues. It is also unclear what additional probative value such material would have. It is clear on the face of the Settlement Agreement that there is a difference between the companies named on the cover page and the Parties as identified on the first page of the Agreement. It is for the trial judge to construe the Settlement Agreement and identify the parties to that agreement by reviewing the document in its context applying normal principles of construction.

The Settlement Agreement recites that Mr Land’s employment contract was concluded in April 2017. The Defendants’ Re-amended Defence and Counterclaim pleads that Mr Land’s employment began in April 2017. While noting that there is a dispute about the status of this part of the Defendants’ pleading I am not sure that it makes a difference on this issue as it adds nothing to the April date recited in the Settlement Agreement itself. Mr Land’s uncontested evidence (at paragraph 43 of his Witness Statement) is that he was offered an employment contract with Cadman Fine Wines beginning on 3 April 2017. The without prejudice material contains no more precise information about the date on which the employment contract entered into effect and it was not argued that the precise date was important. I conclude that there is no justification under the Oceanbulk principle to disapply the without prejudice rule for material relevant only to the existence of an employment contract between Mr Land and Cadman Fine Wines or to the date of that contract.

The final reason put forward by Mr Harris for allowing the Defendants to adduce without prejudice material under the Oceanbulk exception was that it shed relevant light on the factual matrix surrounding the scope of the intellectual property in issue under Paragraph 7.5 of the Settlement Agreement. The without prejudice material in question is to be found at page 196 of exhibit RL1 and is an email from Mr Cadman to Mr Land’s employment solicitor. I have considered the content of the third paragraph of that email, together with material from an earlier email from Mr Cadman to Mr Land [B216-B217]. Mr Harris seeks to draw the conclusion that this material establishes the underlying facts necessary to show that there is no relevant intellectual property.

I disagree with Mr Harris. The material in question is not evidence that the parties had a common understanding of a fact relevant to the factual matrix in which the Settlement Agreement was concluded. If anything, this material appears to indicate a potential disagreement between the parties on an issue that might affect the construction of a particular phrase in the Settlement Agreement. Without prejudice material is not admissible to construe a particular phrase or concept in a contract. This material is not within the scope of the Oceanbulk exception.

In summary, I conclude that the Defendants have not established that the Oceanbulk exception applies to any of the without prejudice material discussed in Mr Land’s evidence or exhibited to his witness statement.

The conclusions I have reached above, plus the various voluntary changes to the witness evidence, mean that amended statements need to be prepared to give effect to those findings. I should be grateful if the parties would prepare drafts for review and approval. I will liaise separately with the parties about the timing for the provision of these draft revised statements and a draft order.

Both parties submitted costs schedules before the hearing. It will save time if I explain that I have concluded that the appropriate order is for costs to be reserved to be dealt with by the trial judge at the conclusion of the trial. In deciding not to depart from the normal position in IPEC I have had regard to my conclusions and to the ability of the trial judge to review the costs and impact of these applications in the context of the overall action and the IPEC costs cap.

In view of the without prejudice considerations and the fact that part of the hearing was held in private I provided a copy of this judgment to the parties in draft and asked them to identify any necessary redactions, bearing in mind that, as stated by HHJ Hodge QC in Holyoake, the Court’s published judgment should not reveal material to which the without prejudice principle applies.