In EMW Law LLP v Scott Halborg [2016] EWHC 2526 (Ch), Master Clark concluded that, where the documents were relevant to an issue in dispute, they could be admitted into evidence even though they were subject to without prejudice privilege, because appropriate arrangements could be made to ensure that there was no prejudice to the parties to which the privilege belonged.

This case is a useful reminder that documents marked without prejudice will not necessarily be protected from future disclosure. The making of an order for disclosure of without prejudice documents does not necessarily mean the privilege is lost in the documents other than for limited purposes and to a limited group of people. Therefore, in an appropriate case, consideration may need to be given to whether, and if so how, disclosure can be made in a way that avoids prejudice to those who own the privilege rather than raising a wholesale objection to disclosure of all without prejudice communications.