The "without prejudice" rule excludes from evidence all negotiations genuinely aimed at settlement. The court must consider the circumstances of the communications from an objective standpoint.
In this case, the appellant allegedly made certain admission during a meeting with the other side's solicitors (which the appellant said was held in order to discuss the case and its progress). At first instance, it was held that the meeting had not been a without prejudice meeting. That finding has now been reversed by the Court of Appeal.
The Court of Appeal held that "a broader view is now authoritatively required" when deciding the nature of discussions which have taken place. Taking into account that it can be harder to determine this question where a litigant in person is involved, Vos LJ went on to state that "I am influenced here by asking what else could it be said the discussions were about?" The appellant had not attended in order to obtain legal advice and "the only sensible purpose for such a meeting must have been to seek some kind of solution to the litigation" for the appellant: "That is what a settlement is, and what both parties here must objectively be regarded as having genuinely been seeking. There is no justification for salami slicing the interviews into parts that were open and parts that were without prejudice. Such an approach would contravene the broad view required by the authorities which I have described". Accordingly, the entire meeting was covered by the privilege.
Nor could it be said that exclusion of the evidence would act as a cloak for impropriety. The appellant had done nothing even arguably dishonest in the course of the meeting and so this was not a case like that mentioned in an earlier decision, where the person seeking to claim the privilege had threatened the other side, during the relevant discussions, that he would give perjured evidence unless the settlement was agreed.
The Court of Appeal went on to find that there had also been no waiver of the privilege.
The test of waiver of without prejudice privilege differs from that for legal professional privilege, in that the waiver must be made by both parties. The Court of Appeal said that this calls for an objective evaluation in the context of the purpose of the without prejudice privilege. Would it be unjust for the appellant to argue that admissions made in the meeting were privileged? The Court of Appeal found that, in the circumstances it would not: "It would hardly protect the privilege and its overarching purpose if the party seeking to overcome it could secure its waiver by forcing the opposing party to respond to an application it was making to the court".
COMMENT: The Court of Appeal's broad view approach seems to lead to the result that, where two disputing parties agree to meet, the onus will fall on the party denying that without prejudice privilege applies to demonstrate that the purpose of that meeting was not to reach some kind of solution. The comment about not dividing the meeting into WP and non-WP parts is also of interest. In Passmore on Privilege, 3rd edn, it is commented that "meetings often switch in and out of the without prejudice mode", but the Court of Appeal seems to be of the view that that an overall view of the nature and purpose of a meeting is generally a better approach.