FW Aviation (Holdings) 1 Limited v VietJet Aviation Joint Stock Company

The unambiguous impropriety exception to without prejudice privilege requires both proof, to an unambiguous standard, that the alleged words were spoken and proof that their meaning was unambiguously improper. The test is deliberately difficult to satisfy, including on an interim application. A disputed, unrecorded conversation will rarely meet the evidential threshold. A warning about possible enforcement difficulties in a foreign jurisdiction is not, without more, an improper threat or blackmail. Subsequent disputed conduct cannot resolve ambiguity about what was said or create impropriety where the words themselves do not disclose it. Without prejudice privilege is joint. Serving evidence to defend the privilege does not waive it, and waiver is not lightly inferred.

The claimant sought to rely on remarks allegedly made by the defendant’s vice-chairman during a without prejudice meeting. The remarks were pleaded as threats that the defendant would frustrate enforcement of English court orders and the export of leased aircraft from Vietnam. The conversation was not recorded, the accuracy of a contemporaneous note was disputed, and the witness whose note was relied upon was not to give evidence at trial.

The defendant applied to strike out the pleaded material as inadmissible under without prejudice privilege. The claimant argued that the remarks fell within the unambiguous impropriety exception and that the defendant had waived privilege, including by serving a witness statement addressing the allegations.

1. Application granted. The pleaded material was protected by without prejudice privilege and was struck out, subject to the court’s consideration of waiver.
2. The court adopted the approach in Motorola Solutions v Hytera Communications [2021] QB 744. The exception requires an unambiguous evidential basis that the conduct occurred and an unambiguous showing that the conduct was improper in character. The fact that the issue arises on an interim application does not dilute the test.
3. The evidential threshold was not met. The conversation was disputed, unrecorded, and the contemporaneous note was itself challenged. This was not one of the rare cases in which the court could reach a firm conclusion that the alleged words were spoken.
4. The qualitative threshold also failed. The words were more naturally understood as a warning about difficulties enforcing a judgment in Vietnam. They did not unambiguously threaten deliberate defiance of English court orders or procurement of non-enforcement by Vietnamese courts. A party’s possible enforcement difficulties, and the anticipated conduct of a foreign government for which the party is not responsible, did not amount to unambiguous impropriety.
5. Subsequent events, even if disputed evidence suggested that the alleged threats had been carried out, were irrelevant to the two questions requiring determination. They could neither resolve ambiguity about what was said nor create unambiguous impropriety in words that did not otherwise have that character.
6. The court rejected the suggestion that a warning of enforcement difficulties should be equated with blackmail. It also did not accept that a different test for blackmail was established by the material relied upon, although that issue did not require determination.
7. There was no waiver. Delay did not amount to a representation of consent, objections had been consistently maintained, and waiver was not lightly to be inferred. The defendant’s witness statement was served to establish that privilege had not been lost and could not sensibly be construed as agreement by both parties to waive joint privilege.

not stated in the judgment.