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

Starting with the public policy justification for the WP Rule, I do not consider that the Intertek Audit Report can properly be said to fall within it. Although there is no doubt that the without prejudice negotiations between the parties as to settlement included discussions as to the commissioning of an audit report, I cannot see that the Intertek Audit Report is therefore automatically cloaked in without prejudice privilege. It is not itself a statement or offer made in the course of negotiations, it is not a record of negotiations between the parties and it has nothing to do with admissions. It is an independent report commissioned from a third party which does not contain statements from either party. It is very difficult to see how (absent agreement) it could fall within the underlying purpose and objective of the WP Rule of enabling the parties to speak freely.

I do not understand Rabin to be authority for the proposition that a third party report falls within the public policy arm of the WP Rule, that being a case which appeared to turn on the parties’ “understanding” that the survey report should be “without prejudice”. It is clear from the authorities to which I have referred that the public policy justification for the WP Rule is “a matter of general law” and has nothing to do with any notional agreement between the parties (see Ofulue at [37]). The evidence from Mr Parsons and Ms Snook therefore takes matters no further in relation to the public policy justification.

Furthermore, I have already rejected Mr Bowsher’s reliance upon the broad proposition set forth in Willers v Joyce at [32(3)]. In my judgment, the public policy rationale for the WP Rule cannot possibly cover anything the parties do further to discussions at a without prejudice meeting. That would be to extend the ambit of the rule too far. The “unseen dangers” that Lord Hope identified in Ofulue (at [12]) as lurking behind things said or written by the parties in a period of negotiation and the inhibiting effect that these may have on the attempts to achieve a settlement do not appear to me to extend to an independently commissioned report into conditions at the Boson Facility written by a third party.

Finally, while negotiations and discussions should not be dissected (such that the parties can speak freely in the furtherance of the protection of admissions against interest), I reject Mr Bowsher’s submission that (absent agreement) an independent report commissioned from a third party falls within that underlying objective. It strikes me as not entirely insignificant that the Defendant has only sought to rely upon the public policy justification for the WP Rule as a stand-alone argument at the eleventh hour, having, until then, focused his arguments (and evidence) on the existence of an agreement between the parties.