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The High Court permitted a defendant in ongoing commercial proceedings to introduce into evidence a sequence of letters exchanged between the parties' solicitors, which had been marked 'without prejudice save as to costs'. The court found that, while the correspondence was ostensibly written for the purpose of settlement negotiations, one particular letter from the plaintiff included an implicit threat—that unless the defendant engaged in settlement talks and compensated the plaintiff, the plaintiff might cause Swiss criminal proceedings (which it had initiated and had influence over) to be expanded to involve the defendant, thereby risking reputational and legal harm. The court determined that this constituted unambiguous impropriety, exceeding what is permissible in the context of hard-fought commercial litigation. As a result, the usual protection of without prejudice privilege was lifted, and the letters were ordered to be admitted as open correspondence.
without prejudice privilege – commercial proceedings – admission of solicitor correspondence – settlement negotiations – unambiguous impropriety – Swiss criminal proceedings – implicit threat – legal privilege exception – Rules of the Superior Courts (RSC) – Legal Services Regulation Act 2015 – plaintiff – defendant – reputational harm – costs – application to admit evidence
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