Privilege
Practice and procedure – Privilege – “Without prejudice” communications – Claim by appellant tenants against respondent landlord for wrongful forfeiture of lease – Second appellant having meetings with respondent’s solicitor – Solicitor’s witness statement indicating that second appellant admitting to rent arrears in course of meetings – Judge admitting statement in evidence – Whether statement inadmissible as covered by “without prejudice” privilege – Whether such privilege waived – Appeal allowed
The appellant were a married couple who ran a Japanese restaurant from premises in New Malden, Surrey, which they held on a business lease granted in 1999 for a term of 20 years. In August 2010, the respondent purported to forfeit the lease by re-entry. The appellants brought a claim against the respondent for damages for wrongful forfeiture.
By that time, the second appellant had become estranged from her husband. In January 2014, two meetings took place between the second appellant and the respondent’s solicitor at the latter’s offices. The respondent later sought to admit a witness statement by the solicitor, to which her attendance notes of the meetings were exhibited, as evidence that the second appellant had admitted in the course of the meetings that there were rent arrears at the time when the respondent re-entered the premises. In the statement, the solicitor indicated that the second appellant had approached the solicitor because she no longer wanted to take part in the proceedings, and had been told that the respondent might well let the second appellant out of the claim, without payment of all costs, if she made a statement containing the admissions that she had made.
The second appellant later denied making the admissions. The appellants contended that the solicitor’s statement should not be admitted since it contained “without prejudice” matters to which privilege attached.
Ruling in favour of the respondent, the judge found that the relevant meetings were not “without prejudice”, and privilege did not attach to them, since they were not conducted for the purpose of a genuine attempt to compromise a dispute between the parties. He found that the meetings had occurred because the second appellant, who was afraid of her husband, had gone to the respondent’s solicitor to find out what was happening in the case.
After making findings about the disputed rent payments, the judge dismissed the appellant’s claim and gave judgment for the respondent on its counterclaim for outstanding rent of £5,871.35, plus interest of £627.71. The appellants appealed.
Held: The appeal was allowed.
(1) When deciding whether communications were covered by “without prejudice” privilege, the court had to consider the circumstances of the communications from an objective standpoint, in order to decide whether they discussions were, or ought to have been, seen by both parties as negotiations genuinely aimed at settlement of the proceedings: Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280 and BE v DE (evidence: without prejudice privilege) [2014] EWHC 2318 (Fam) applied.
The judge had erred in taking a narrow view of the kind of discussions that might be properly so regarded. A broader view was required in order to give effect to the public policy underlying the rule, which was to give protection to the parties to speak freely about all issues in the litigation, in order to encourage them to settle their differences rather than litigate them to a finish: Rush & Tompkins Ltd and Ofulue v Bossert [2009] UKHL 16; [2009] AC 990; [2009] 2 EGLR 97 applied. Where litigants in person were concerned, as in the instant case, it might sometimes be more difficult to determine objectively whether the discussions in question were negotiations genuinely aimed at settlement. However, the only sensible purpose of the discussions between the second appellant and the respondent’s solicitor, when regarded objectively and in the round, must have been to seek some kind of solution to the litigation for the second appellant. That was what a settlement involved, and was what both parties should objectively be regarded as genuinely seeking. The second appellant had gone to the respondent’s solicitor because she wanted to know what was happening with the case and how it was progressing, and her first comment had been that she no longer wanted any part in the proceedings. The solicitor had then proceeded immediately to ask a number of pointed question. There was no justification for salami slicing the meetings into parts which were open and parts which were without prejudice. Such an approach would contravene the broad view which was required by the authorities. It followed that the entirety of the discussions at the first meeting, and thereafter in correspondence and at the second meeting, were properly to be regarded as protected by without prejudice privilege and were prima facie inadmissible in evidence, as was the solicitor’s account of the discussions in her statement.
(2) The second appellant could not be said to be abusing the “without prejudice” rule so as to justify making an exception from the rule and admitting the evidence. There was no evidence that the second appellant even knew what the term “without prejudice” meant, let alone that she was calculating the use of it to tell lies. She had done nothing that was even arguably dishonest in the course of the privileged discussions. The respondent’s case was that she had told the truth during the meetings, but had later denied the admissions that she had allegedly made. That was not an attempt to use the exclusion of the evidence as a cloak for perjury, blackmail or other unambiguous impropriety, so as to attract the exception. Whether or not she had lied in denying her earlier admissions, this was not a clear case of an abuse of a privileged occasion: Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 considered.
(3) Nor could the appellants be said to have waived the privilege by their subsequent conduct. The test of waiver for “without prejudice” privilege was not the same as that for legal professional privilege. The test was whether, in light of the appellants’ conduct, objectively evaluated in the context of the purpose of the “without prejudice” privilege, it would be unjust for them to argue that the admissions made in the meetings were privileged. That did not turn on whether the appellants knew of the existence of the “without prejudice” privilege when they conducted themselves as they did.
The respondent had indicated that it intended to ignore the privilege which attached the second appellant’s admissions, by bringing them to the attention of the court. It would be unjust, and contrary to the requirement for the privilege to be protected, to hold that the appellants’ unguarded responses to the respondent’s conduct had amounted to a waiver of the privilege itself. The required objective evaluation of the appellants’ conduct led to the conclusion that it would be unjust to prevent them from arguing that the admissions made in the meetings were privileged from production to the court.
Bo-Eun Jung (instructed by direct access) appeared for the first appellant; Richard Samuel (instructed by Goodge Law) appeared for the second appellant; Jonathan Wills (instructed by Wellers Hedleys, of East Horsley) appeared for the respondent.
Sally Dobson, barrister
Click here to read a transcript of Suh and another v Mace (UK) Ltd
