As is well known, the WP rule protects negotiations genuinely aimed at settling a dispute, with the effect that they are inadmissible in any current or subsequent legal proceedings.
At first instance in WH Holding, Norris J commented that the consequence of a narrow formulation of the test for litigation privilege would be that, while a WP settlement offer would not itself be before the court because it was protected by the WP rule, an internal document recording the terms of the offer, or recording discussion of the offer, or authorising the terms and putting of the offer would be open to inspection and inclusion in the trial bundle. He described that as “odd”, concluding that such documents would be protected by litigation privilege.
The Court of Appeal did not comment specifically on this aspect of the judge’s reasoning but, in fact, it does not follow that a denial of litigation privilege to such documents means that they will necessarily be before the court. The WP rule prevents the admission of any evidence of the content of (written or oral) WP negotiations, such as offers put forward or statements made in the negotiations. So an internal document recording the terms of an offer, or discussing an offer, would itself be protected to the extent that it revealed the content of the negotiations.
The difficulty, therefore, is not with documents that reveal the negotiations themselves, but with internal discussions regarding the strategy behind the negotiations, or (perhaps) considering various options a party might put forward as settlement proposals. It is these communications which may fall into a gap between litigation privilege and WP protection.
So what is covered by privilege?
Following WH Holding, discussions of settlement options or strategy will not be protected by litigation privilege unless they are for the