The Defendants argue that the Claimants were aware of these payments, and in fact ratified or affirmed them, as (at least) the payments were detailed in the factual background section to the Defendants’ position paper exchanged during an earlier WP mediation between the parties in respect of Lancer’s performance bonus. All the position papers were marked “Without Prejudice”.
The Claimants applied to strike out the parts of the Defendants’ defence which refer to the WP statements made in their position paper, on the basis that they are WP and therefore inadmissible. The Defendants argued that the statements were admissible under one or more exceptions to the WP rule, and that the statements should be admitted as evidence in support of their argument that the Claimants had known about such payments.
Decision
The High Court (Roth J) held that the WP statements were admissible.
Roth J noted that it is well established that the WP rule is not absolute and is subject to exceptions. He referred to the (non-exhaustive) list of exceptions to the WP rule found in Unilever Plc v Proctor & Gamble Co [2000] 1 WLR 2436. The Defendants in this case relied on three of the exceptions listed in Unilever, under which WP evidence may be admissible:
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ReSolution | Dec 2020