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

I was referred to a number of authorities by the parties and draw the following principles from those cases relevant to the issue arising in this case:

During the course of his submissions, Mr Bowsher sought to rely upon a summary of the principle in Rush & Tompkins by Andrews J in Willers v Joyce [2019] EWHC 937 (Ch) at [32(3)], in which the learned judge records that the WP Rule applies to render inadmissible evidence “of what was said and/or done during the course of negotiations genuinely aimed at settlement: see Rush & Tompkins…per Lord Griffiths at 1299-1300” (emphasis added). This, suggested Mr Bowsher, supports a very broad reading of the ambit of the public policy justification for the WP Rule.

In my judgment, however, this passage needs to be approached with some care. It does not seek to distinguish between the public policy justification for the WP Rule and the contractual justification and it was plainly intended by the Judge only as a summary of the principle as set forth in Rush & Tompkins, in which Lord Griffiths expressly refers only to “negotiations genuinely aimed at settlement”. For the purposes of considering the public policy justification, I do not consider the word “negotiations” to extend to cover anything that may be “done” by the parties, and each of them, during the course of without prejudice negotiations (although, of course, the parties might agree that something which is “done” by them should be without prejudice). I return to the words of Lord Hope in Ofulue as set out above; it is the ability to speak freely that indicates where the limits of the rule should lie. Accordingly, while I have no doubt that the Judge in Willers v Joyce was applying shorthand to describe the principle as set out in Rush & Tompkins, I decline to adopt that shorthand.

Both parties drew my attention to Rabin v Mendoza & Co [1954] 1 WLR 271. In that case, the parties in a negligence action involving an allegedly negligent survey of a property reached “an understanding” at a without prejudice meeting that if the risk in question could be covered by taking out an insurance policy, the litigation would be unnecessary. A survey report of the property was commissioned by the defendant firm in order to persuade insurers to cover the risk. No settlement was reached but the question arose in the proceedings as to whether the defendant firm was bound to produce the report or whether it was entitled to claim privilege “on the understanding that [the report was] not to be used to the prejudice of either party” – i.e. on grounds of without prejudice privilege.

That proposition appears at the time to have been novel. It is clear from Denning LJ’s judgment that without prejudice privilege was not a head of privilege identified in the White Book. Nevertheless, he expressed the view (at 273) that “if documents come into being under an express, or, I would add, a tacit, agreement that they should not be used to the prejudice of either party, an order for production will not be made”. Denning LJ held that the surveyors report fell within that principle, observing that it “was clearly made as a result of a “without prejudice” interview and it was made solely for the purpose of the “without prejudice” negotiations”. Romer LJ agreed, saying that “[i]t seems to me perfectly plain…that the only object of obtaining the report was to implement the understanding which was arrived at during the interview which was without prejudice; therefore, in my judgment, the protection extends to the report which was obtained in pursuance of that understanding”.

It was common ground at the hearing that Rabin is not concerned with the public policy justification for the WP Rule, but with the circumstances in which the ambit of the rule may be widened by agreement of the parties. Ms Hannaford submits that, subject to the words “tacit” and “implied” meaning the same thing, the general principle that was articulated in Rabin is on all fours with Unilever and Avonwick. Thus, she submits that if one is dealing with an express agreement, the parties may decide to agree to broaden (or narrow) the WP Rule in any way they think fit; as long as their agreement is for valuable consideration it will be upheld (Avonwick). However, relying upon Hollander: Documentary Evidence 15^th Edn, at 20-06, Ms Hannaford contends that the court must take great care before implying an agreement that a document will be covered by without prejudice privilege. She submits that an appropriate degree of caution can be achieved by applying the Court of Appeal’s approach in Rabin to the effect that the survey report was covered by without prejudice privilege not only because there had been an “understanding” or agreement to that effect but also because it was made “solely” for the purpose of the without prejudice negotiations.

I agree that it is likely to be difficult to identify a tacit or implied agreement that a document is to be covered by without prejudice privilege in circumstances where the document was not made solely for the purpose of the without prejudice negotiations. However, I did not understand Ms Hannaford to suggest that it was impossible for the court to find an implied agreement absent a finding of sole purpose for use in without prejudice negotiations – merely that it would be “inadvisable” to imply an agreement in a case where the disputed document had a number of different purposes.

Even assuming the requirement of “sole purpose” to be part of the ratio of the decision in Rabin, that case was decided before the development of the principles set out in the “modern cases” (which date from Cutts v Head in 1984 - see Unilever at 2448 per Robert Walker LJ) and so must be treated with a degree of caution. There is nothing in Unilever or in Avonwick, both of which discuss the parties’ freedom to extend the ambit of the public policy rule by agreement, to suggest a “sole purpose” requirement. Indeed the imposition of a sole purpose requirement when examining any agreement made by the parties might appear to circle back into the public policy requirement for the WP Rule as articulated by Lord Griffiths in Rush & Tompkins (that all negotiations, whether oral or in writing be inadmissible where they are “genuinely aimed at settlement”).

Accordingly, while it may be difficult to establish an implied agreement absent a sole purpose of use in without prejudice negotiations, I am not prepared to find that such sole purpose is an essential feature (and I agree with Mr Bowsher’s submission that it is not). In any event, for reasons to which I shall turn, the outcome of this Application does not turn on the issue of “sole purpose”.

Finally, Ms Hannaford submits that the burden of proof on an application of this sort rests with the party claiming privilege. Ms Hannaford relies for this proposition on West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm) per Beatson J at [86(1)]. However, West London was a case involving litigation privilege, where there can be no doubt that the burden lies on the party asserting such privilege. I am less convinced that the same approach necessarily applies in the context of without prejudice privilege and it was Mr Bowsher’s submission (albeit without reference to authority) that if something is done as part of without prejudice negotiations “the presumption is that it is part of those negotiations” – from which I understood him to suggest that the burden of rebutting such presumption would rest with the party asserting an absence of privilege.

There is virtually no reference in the cases to which I was referred to the burden of proof in a case involving a dispute over without prejudice privilege. I note, however, Lord Hope’s observation in Ofulue at [2] (immediately following a reference to Cutts v Head, Rush & Tompkins and Unilever) that “[w]here a letter is written without prejudice during negotiations with a view to a compromise, the protection that these words claim will be given to it unless the other party can show that there is good reason for not doing so” (emphasis added). Applying this proposition would suggest that (at least) once the words “without prejudice” are used in connection with a document written in the context of an attempt to compromise a dispute, the burden lies with the party disputing the privilege. That is not, however, the position here, where a document was created further to without prejudice discussions but was not itself marked “without prejudice”. Whilst it may be that in such a case it is for the party asserting the privilege to rebut the inference that the document is open, I was not referred to any authority to this effect.

In any event, I do not need to decide the point and I doubt that the question of “burden of proof” will generally be of much assistance when it comes to determining an issue about without prejudice privilege. I have not needed to resort to the burden of proof in order to decide this Application.