The Court of Appeal has held that discussions between a defendant's solicitor and a claimant litigant in person were or ought to have been seen by both parties as "negotiations genuinely aimed at settlement" and therefore protected by the without prejudice rule. In doing so, the court overturned the High Court's decision, which it said took too narrow a view of the kinds of discussions that may be protected by the rule: Suh v Mace (UK) Limited [2016] EWCA Civ 4.
The decision illustrates that discussions may be protected by without prejudice privilege where it should be obvious that their purpose is to try to resolve the dispute, even if that is not openly acknowledged and the question of settlement does not come up until some way into the discussions. The case suggests that a broad view is likely to be taken, particularly where one party does not have legal representation and so the purpose and status of the discussions might not be made as clear as would be expected if lawyers were involved on both sides.
The judgment also suggests that a court will be slow to find that a party has waived without prejudice privilege simply because it has responded to an opponent's attempts to introduce evidence of the discussions without raising the issue – particularly, though perhaps not exclusively, where the party in question is unrepresented. Still, the safe course where an opponent seeks to introduce evidence of without prejudice discussions must be to object to their admissibility without delay. Click here to read more on our Litigation Notes blog.