Willers v Joyce & Ors

The without-prejudice rule ordinarily excludes evidence of negotiations genuinely aimed at settlement, including statements that are not admissions against interest. Its protection may be varied by express or implied agreement, but waiver must be mutual and is not lightly inferred. The court should recognise new exceptions only on a principled basis and should avoid extensions that undermine frank settlement discussions. The material was admissible here because correspondence marked without prejudice save as to costs objectively varied the earlier protection. It could be used solely for argument on costs.

The executors of Albert Gubay sought costs against the solicitors and barristers who had represented Peter Willers in a dismissed malicious-prosecution action. They wished to rely on correspondence marked without prejudice save as to costs, together with references to settlement discussions at a February 2017 mediation and a closely connected telephone conversation. The Lawyers objected, contending that the material remained protected.

The issues were whether the without-prejudice rule applied, whether an exception permitted use of the material, and whether the 2018 correspondence varied the protection or amounted to mutual waiver.

1. The application was allowed. The contested material was admissible, but only because the parties had agreed that material arising from the February 2017 settlement discussions could be used in argument about costs. That agreement bound the Lawyers as well as Mr Willers.
2. The rule protects evidence of negotiations genuinely aimed at settlement. It is distinct from legal professional privilege, founded on public policy and agreement, and normally protects negotiations as a whole.
3. The recognised exceptions did not otherwise assist. The material was closely connected with the underlying litigation and was not necessary to determine the costs application. The independent-fact rationale could not be separated from the settlement negotiations. The impropriety exception did not apply.
4. The court followed the approach in Briggs v Clay, [2019] EWHC 102 (Ch), concerning the necessity of admitting material to resolve an issue raised by a negotiating party. It declined to confine new exceptions to incremental extensions of existing exceptions, although extensions must remain principled and cautious.
5. The WPSAC correspondence objectively varied the protection. The agreement covered the mediation and the conversation four days later, which was a direct continuation of those negotiations. The later attempt to restrict the agreement was ineffective.