Galliford Try Construction Ltd v Mott MacDonald Ltd

Negotiations genuinely aimed at resolving a dispute are protected by the without prejudice rule even if no formal claim has yet been made and the communications are not labelled without prejudice. The court must examine the substance and purpose of the discussions. Material forming part of those negotiations, including related correspondence and meeting notes, is generally inadmissible.

Disclosure of without prejudice material does not itself waive its inadmissibility. Under the Civil Procedure Rules 1998, a document may be listed while remaining inadmissible. Where disclosure was an obvious mistake, privilege may be maintained and the material retracted.

The defendant applied to remove paragraphs 39 to 48 of the claimant’s witness statement and associated documents from the trial bundles. The material concerned meetings and correspondence between the parties during a major construction project before a formal claim was presented.

The claimant argued that the discussions merely set out its position and could not be negotiations because no claim had yet been formulated. A third party argued that disclosure of two documents had waived privilege. The issues were whether the material concerned negotiations, whether those negotiations were without prejudice, and whether privilege or admissibility had been waived.

1. Negotiations. The material recorded genuine negotiations. The absence of a formulated claim did not prevent negotiations, particularly where senior representatives were attempting to resolve serious project difficulties before they escalated. The claimant’s reliance on alleged admissions about liability and costs demonstrated that the discussions involved more than statements or restatements of its case.

2. Without prejudice status. The discussions were without prejudice. The substance and context were decisive, not the use of the label. The earlier request that the meeting be without prejudice, and the later agreement that discussions would move beyond that stage when the formal claim was presented, confirmed the character of the earlier material. The associated letters, notes and minutes referred to or formed part of the same negotiations.

3. Admissibility and waiver. The court declined to undertake a detailed editing exercise. The wide protection of the rule applied particularly because the claimant sought to rely on alleged admissions made during the negotiations. Listing or offering the documents for inspection did not itself make them admissible. The change from the former disclosure rules to CPR 31.6 did not alter the fundamental principles stated in Rush & Tompkins Ltd v Greater London Council and Forster v Friedland.

4. Alternatively, disclosure of the letter of 27 November 2000 and the notes of the meeting of 4 December 2000 was an obvious mistake. A reasonable solicitor familiar with the dispute and the prior adjudication should have recognised that the documents had been disclosed inadvertently. Privilege had therefore not been waived.

5. The application was granted. The relevant paragraphs were to be excluded from the witness statement, and the identified documents were not to be included in the trial bundles.