Court of Appeal Considers admissions in without prejudice meetings

"The 'without prejudice' rule excludes all negotiations genuinely aimed at settlement being given in evidence. The rule is founded on the principle that litigants are to be encouraged to settle their differences rather than litigate and have their day in court.

The application of the rule is not dependent upon the use of the phrase 'without prejudice'. Instead, as the Court of Appeal has recently confirmed the case of Suh v Mace (UK) Limited [2016], it is the purpose of any correspondence/discussions between the parties that is determinative.

Mr and Mrs Suh had pursued a claim for damages against their former landlord alleging unlawful forfeiture of a commercial lease. During the course of the proceedings, Mrs Suh (she and Mr Suh separated during the course of the dispute) requested a meeting with the solicitor for the Landlord.

In January 2014, 2 meetings took place between Mrs Suh, who was not legally represented, and the Defendant Landlord's solicitor at the solicitor's offices. The Landlord subsequently sought to rely upon a witness statement dated 10 February 2014 produced by the Landlord's solicitor which recorded her version of events as regards those meetings. Amongst other matters, the statement recorded that Mrs Suh admitted that at the time the Landlord had re-entered the property and forfeit the lease, there were outstanding rent arrears.

Mr and Mrs Suh argued that the statement was inadmissible as it contained without prejudice matters and as a result was protected by without prejudice privilege. The trial judge concluded that the meetings were not for the purpose of a genuine attempt to reach a settlement and as a result, were not protected by without prejudice privilege. The Court of Appeal disagreed.

Allowing Mr and Mrs Suh's appeal, the Court of Appeal held that a broad view needed to taken when considering whether the discussions were, or ought to have been, seen by the parties as an attempt to reach a settlement. Lord Justice Vos stated that it was obvious that Mrs Suh had asked for the meeting because she wanted to see how she could extract herself from the proceedings, explaining

"That is what a settlement is, and what both parties here must objectively be regarded as having genuinely been seeking…"

Accordingly, the Court of Appeal held that the entire meeting was covered by without prejudice privilege.

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