Chaudhary v Secretary of State for Health

Without-prejudice privilege is not confined to the proceeding in which a communication is sought to be used. It extends to related litigation where use would place the communication before the same court determining unresolved issues against the party entitled to the privilege. The court assesses practical effect: an intention to rely on the document only in another proceeding does not prevent it operating as an admission in the first. Public availability of the communication in a tribunal judgment does not, without more, waive privilege. Where the risk of prejudice could be avoided by separate hearings, the balance may favour exclusion.

The Secretary of State for Health applied for an order preventing admission of a without-prejudice communication between her representatives and Mr Chaudhary. The application arose because Mr Chaudhary had a pending application for permission to appeal against the Secretary of State and was also respondent to a separate appeal brought by the British Medical Association. Both matters were listed consecutively before the same constitution of the Court of Appeal.

Mr Chaudhary sought to use the communication only in the BMA appeal. The central issue was whether the without-prejudice rule nevertheless prevented its use because the same court would necessarily become aware of it when determining the pending application against the Secretary of State.

1. General rule. The without-prejudice rule protects admissions made in a genuine attempt to settle disputes from use in subsequent litigation connected with the same subject matter. Its bases may include public policy and implied agreement. The rule is directed to preventing a party from being embarrassed by the use of settlement communications as admissions. This reasoning was considered in Muller v Linsley & Mortimer [1996] 1 PNLR 74 and Rush & Tompkins v GLC [1988] AC 1280.
2. Practical effect. The court must consider the practical effect of the proposed use. Although Mr Chaudhary intended to deploy the communication only in the BMA appeal, it would be placed before the same constitution hearing the pending application against the Secretary of State. The document would inevitably bear on the Secretary of State’s position on liability and discrimination and would therefore operate in practical terms as an admission. The without-prejudice rule consequently prevented its introduction into the BMA appeal.
3. Balancing and separate hearings. The competing interests were the ability to present relevant evidence and the Secretary of State’s protection from prejudice. The balance favoured privilege because Mr Chaudhary could have applied for the BMA appeal and the pending application to be heard separately, and had had ample opportunity to do so. The court’s confidence that it could keep the document out of mind did not alter the legal analysis.
4. Public availability. The fact that the communication appeared in a tribunal judgment accessible to the public did not amount to waiver. The privilege could still be asserted, including by a party that had not been involved in the proceedings in which the document was reproduced. Bradford & Bingley v Rashid [2006] 1 WLR 206 supported that conclusion.
5. Disposition. Lady Justice Arden granted the Secretary of State’s application. Lord Justice Dyson agreed. The transcript also records an order allowing the appeal, directing the defendant to pay the appellant’s costs, providing for detailed assessment of publicly funded costs, and postponing publication until after judgment.

• Court of Appeal (Civil Division): The court granted the Secretary of State’s application and excluded the without-prejudice communication from use in the related appeal. The judgment is cited as [2006] EWCA Civ 1648.
• Employment Appeal Tribunal: The matter was stated to be on appeal from the Employment Appeal Tribunal before His Honour Judge Peter Clark. No citation or substantive details of that decision are given.