Briggs & Ors v Clay & Ors

The without prejudice rule has a broad application. Its exceptions are narrow and must be recognised by authority or developed incrementally on principle. A party does not waive protection merely by pleading allegations relevant to negotiations. Waiver is not unilateral and is not lightly inferred.

A Muller-type exception requires the without prejudice material to be necessary to make an issue justiciable, while ensuring that the legitimate protection of the negotiating parties is not materially prejudiced. Relevance alone is insufficient. The fact that without prejudice communications occurred may be admissible where relevant, but their content may remain inadmissible.

The claim concerned alleged professional negligence relating to pension-scheme deeds, the conduct of earlier Part 8 proceedings and a subsequent compromise of an appeal. Aon alleged that the claimants’ former solicitors and counsel had negligently failed to advance an argument concerning the status of certain associated and service companies.

The Lawyer Defendants sought to rely on without prejudice communications between the claimants and Aon to show Aon’s involvement in negotiations, to answer allegations of negligence and causation, and to support contribution arguments. Aon sought to exclude the communications and their content from the proceedings. The central issues were waiver, the scope of the recognised exception arising from Muller v Linsley & Mortimer, and whether the fact of communications could be proved separately from their content.

1. Application granted in substance. The content of the without prejudice communications between Aon and the claimants remained privileged and was inadmissible in the proceedings.
2. The rule is founded on public policy and the parties’ implied agreement. It protects the ability to negotiate freely about factual and legal issues. It is not confined to admissions. Exceptions must be strictly limited and must constitute an established exception or a principled and incremental extension of one.
3. Aon had not waived protection. It had not deployed the communications or their content, nor put them in issue by pleading allegations against the Lawyer Defendants. Waiver of without prejudice protection is not unilateral and is not lightly inferred.
4. The Muller exception, properly understood, extends beyond the independent relevance of the communications. It depends on the necessity of admitting the material to resolve an issue raised by a party to the negotiations, together with appropriate protection for the legitimate interests of the negotiating parties.
5. The issues of negligence, the reasonableness of the Approved Settlement, causation and contribution remained justiciable without the content of Aon’s negotiations. The negligence question was objective. The reasonableness of the settlement could be assessed using the settlement negotiations with the representative beneficiaries and other admissible material. The causation and contribution issues could be tried using the open correspondence and evidence of the fact of Aon’s involvement.
6. The fact that without prejudice communications occurred was admissible because it was relevant to the extent of contact during the period of the appeal and settlement negotiations and helped prevent the trial judge being misled by the open correspondence alone. The Lawyer Defendants could not invite an inference about what the communications concerned.
7. Redaction was inappropriate. The proposed distinction between material concerning the claim against Aon and material concerning the representative beneficiaries’ negotiations was unclear and would recreate the discredited notion that only admissions are protected.