(c) any such privilege was waived by the Claimants’ actions in the proceedings in not initially raising the privilege argument when Mace sought to introduce the evidence.
Decision
At first instance, the judge held that the meeting between Mrs Suh and Mace’s lawyer was not a without prejudice meeting. He found that it was not for the purpose of a genuine attempt to compromise a dispute between the parties.
The Court of Appeal reached the opposite conclusion and held that Mrs Suh was entitled to rely on ‘without prejudice’ privilege and ordered that Mrs Suh’s admissions were inadmissible, effectively requiring a re-trial.
First objection - application of ‘without prejudice’ privilege
The Court of Appeal held that the true question is whether the discussions were or ought to have been seen by both parties as “negotiations genuinely aimed at settlement”. The discussions must be regarded objectively and in the round. The court asked itself what else could it be said the discussions were about? The court found that the only sensible purpose for the meeting must have been to seek some kind of solution to the litigation for Mrs Suh. The court also held that “[t]here is no justification for salami slicing the interviews into parts that were open and parts that were without prejudice”.
Second objection – privilege being abused
In relation to Mace’s second objection, the court held that ‘without prejudice’ privilege could be denied where, for example, the person seeking privilege protection was, during the conversation in question, threatening the other party that he would give perjured evidence or seeking to blackmail the other party unless he agreed to the proposed settlement.
In the present case all Mrs Suh had done was later denied the admissions she had allegedly made in the meeting with Mace’s lawyer. The court held that was not an attempt to use the exclusion of the evidence as a cloak for perjury, blackmail or other unambiguous impropriety.
Third objection – waiver of privilege
Finally, the court rejected Mace’s third objection that ‘without prejudice’ privilege had been waived. The court repeated the test for waiver of without prejudice privilege set out by Hoffmann LJ in Forster v. Friedland (unreported 10th November 1992):
“The fact that a party cannot or does not claim privilege from production does not necessarily mean that the document will be admissible. In the nature of things without prejudice communications will usually be within the knowledge of, and if in writing in the possession of, both parties. They are nevertheless inadmissible unless their exclusion is waived by both parties…” (emphasis added).
The court held that the question of waiver does not turn on whether the Claimants knew of the existence of the without prejudice privilege when they conducted themselves as they did; waiver is concerned with justice and the protection of the privilege itself and so needs to be