HT-2022-000043 - [2025] EWHC 540 (TCC)

Fecha: 21-Feb-2025

Discussion

59.

It is common ground that, but for the Defendant’s assertion of without prejudice privilege, the Intertek Audit Report would be relevant to the issues arising in the Claims and, therefore, disclosable. The only issue before the court is therefore whether the Intertek Audit Report is in fact “without prejudice”.

60.

On this central issue, the Claimants contend, in summary, that:

the Intertek Audit Report is not covered by the public policy justification for without prejudice privilege as articulated in the authorities to which I have referred;

accordingly, the Intertek Audit Report can only be protected by without prejudice privilege if the parties agreed to extend the scope of the WP Rule to cover it;

it is impossible to discern any express or implied agreement between the parties that the Intertek Audit Report be covered by without prejudice privilege; and

without prejudice privilege cannot be unilaterally imposed.

61.

In its skeleton argument, the Defendant appeared to be contending that without prejudice privilege attached to the Intertek Audit Report owing purely to the agreement of the parties. Thus, it was repeatedly asserted that there had been a mutual agreement that the Defendant would obtain a new audit report on a without prejudice basis. In a list of corrections provided after circulation of this judgment in draft, the Defendant sought to echo this submission, saying that he had “intended and understood” his written and oral submissions to be that the email dated 28 January 2022 headed “without prejudice” (and included within Appendix A) “was an express statement that the audit report discussed in that email would be covered by without prejudice privilege”. Although not entirely clear, this appears to be a suggestion that there was an express agreement made by the parties during the without prejudice negotiations.

62.

However, this was not the way the argument was developed in submissions. Instead, as I understand his submissions at the hearing, the Defendant submits that:

there is no dispute that the negotiations between the parties in January/February 2022 were without prejudice;

accordingly, as a matter of public policy, the Intertek Audit Report is covered by without prejudice privilege;

it is accepted that there was never an express agreement that the Intertek Audit Report would be “without prejudice”. Until the date of the audit there were merely “evolving discussions” about the terms and scope of the audit;

nevertheless, there came a point when the without prejudice status of the Intertek Audit Report was implicitly agreed by the parties. That point was the date when Intertek was given access to the Boson Facility to conduct the audit. It was only when the audit went ahead that its status was, effectively, confirmed as “without prejudice”. This implied agreement was supported by valuable consideration in the form of a mutual agreement to negotiate. Mr Bowsher put the point thus: “[b]y allowing the auditors in, that was acceptance [by the Claimants] of the basis on which the audit would be done [i.e.] that it would be subject to the WP process agreed throughout”;

although there is no requirement as a matter of law that the report should be made for the sole purpose of without prejudice negotiations, in fact that was the only purpose of the Intertek Audit Report.

63.

During the course of his submissions, I understood Mr Bowsher initially to acknowledge that he could not establish that the Intertek Audit Report was “without prejudice” purely by reason of the operation of public policy, but that he needed also to establish an agreement to that effect between the parties – in other words that the Defendant could only succeed in defending the Application if it could be established that the parties had agreed to widen the ambit of the policy. Certainly, there was no suggestion in his skeleton argument that the Intertek Audit Report fell within the public policy justification for the WP Rule.

64.

However, as set out in paragraph 62(b) above, the Defendant’s final position during submissions appeared to be that, on reflection, there was in fact no need to establish an agreement (whether express or implied); it was enough to contend (apparently contrary to its skeleton argument) that the Intertek Audit Report had been created under the umbrella of without prejudice negotiations and thus was subject to the public policy justification for the WP Rule.

65.

I must examine the rival contentions set out above with care, applying the principles to which I have already referred.