Suh and another v Mace (UK) [2016] EWCA Civ 4

The Court of Appeal has heard a case which examines the applicability of “without prejudice” privilege in relation to two meetings which took place between a claimant litigant-in-person and the defendant’s solicitor.

Background

Mr Suh and Mrs Suh (“the Claimants”) issued proceedings against their landlord, Mace (UK) Limited (“the Defendant”) for wrongful forfeiture of a business lease after the Defendant re-entered the business premises, changed the locks and purported to forfeit the lease.

The subject of the appeal is in relation to two meetings which took place between Mrs Suh, a litigant-in-person and the landlord’s solicitors, Ms Jackson.The meetings took place in Ms Jackson’s office. As Mrs Suh was a litigant-in-person, Ms Jackson felt she was able to meet with her. Mrs Suh had not specified the purpose of the meeting on the telephone, but in the meeting she explained that she wanted to know what was happening with the case and how it was progressing.

This surprised Ms Jackson as witness statements (including one signed by Mrs Suh) had just been served. Through the course of the meeting, it was alleged that Mrs Suh admitted that she had not personally signed certain court documents, and that there had indeed been rent arrears when the landlord re-entered the premises. The alleged admissions were materially significant and would have doomed Mrs Suh’s claim.

The landlord tried to rely on Mrs Suh’s purported admissions and sought to admit Ms Jackson’s witness statement exhibiting her two attendance notes of the meetings with Ms Suh. Mrs Suh objected on the grounds that Ms Jackson’s statement contained matters covered by “without prejudice” privilege which had not been waived.

At first instance, the judge ruled that the meetings were not “without prejudice”, as Mrs Suh had not attended the meetings for the purpose of a genuine attempt to compromise the dispute. The meetings were held to be open discussions about the claim. Accordingly, the Claimants’ claim for damages was dismissed, and the Defendant’s counter-claim for unpaid rent was successful.

Court of Appeal

The Claimants appealed on the ground that the judge’s decision was “unjust” and the judge erred in ruling that alleged ‘admissions’ were not protected by the without prejudice privilege and were therefore admissible in the trial.

The Court of Appeal considered the following three points: 

1. Were the meetings between Mrs Suh and Ms Jackson prima facie “without prejudice”?

The question which the Court of Appeal considered was whether the discussions were or ought to have been seen by both parties as ‘negotiations genuinely aimed at settlement’. 

The Court noted that “where litigants in person are concerned, it may sometimes, be more difficult to determine objectively whether the discussions in question were negotiations genuinely aimed at settlement. But I am influenced here by asking what else could it be said the discussions were about? Mrs Suh was not there to obtain legal advice. The only sensible purpose for such a meeting must have been to seek some kind of solution to the litigation for Mrs Suh.”

The Court of Appeal noted the broad view taken in the authorities, in particular Rush & Tomkins v GLC, and held that the meetings were covered by “without prejudice” privilege and were prima facie inadmissible in evidence.

2. Should the “abuse exception” apply and the cloak of privilege be denied to Mrs Suh?

The landlord’s second argument was that the cloak of privilege should be denied to Mrs Suh as she was using “without prejudice” discussions to cover up alleged admissions that she had not signed her own witness statement or other court documents.

The Court of Appeal considered Unilevel Plc. V The Procter & Gamble Co where it was noted that the “abuse” exception to privilege should only apply where the exclusion of evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety. 

The Court of Appeal found that Mrs Suh had done nothing even arguably dishonest in the meetings (Mrs Suh openly admitted that she did not sign the court documents), and rejected the landlords’s argument.

3. Privilege had been waived by conduct

The landlord argued that the “without” prejudice privilege had been waived by Mrs Suh’s conduct.

The Court of Appeal sought to objectively evaluate whether the tenants’ conduct amount to a waiver of “without prejudice” privilege. This evaluation would be aimed at determining whether it would be “unjust” based on the tenants’ conduct to argue that the admissions were privileged from production.

The Court of Appeal noted that this evaluation would depend very much on an objective analysis of the facts in this case. It considered the fact that neither Ms Jackson’s witness statement nor Mrs Suh’s statement in response mentioned or waived any right to rely on the without prejudice privilege. Indeed, the Claimants did not realise until later that the alleged admission might even be covered by without prejudice privilege. As soon as the Claimants became aware of without prejudice privilege, they put that argument forward.

The Court of Appeal found that the tenants’ conduct had not waived the prejudice, and held in relation to the appeal that it would be unjust to prevent the tenants from arguing that the admissions made in the interviews were privileged from production to the court.

Conclusion

This case is a useful reminder of the applicability of “without prejudice” privilege.In particular, The Court of Appeal noted that the test of a waiver for “without prejudice” privilege is different from the waiver for legal professional privilege. Subject to the equitable principles of confidentiality, there is no rule that documents or communications subject to legal professional privilege cannot be adduced in evidence by someone else.

In addition, a waiver of legal professional privilege against production will automatically entitle the opposing party to use the document in evidence. A communication “without prejudice” on the other hand, remains inadmissible whether tendered by the plantiff or defendant, even if the opposing party has the document, as he usually will, he can make no use of it.

This case also serves as a cautionary tale and a useful reminder of the difficulties faced by solicitors when opposed by a litigant-in-person. With the introduction of LASPO, many individuals who are no longer able to obtain legal aid are now representing themselves. The solicitor may be required to assist the litigant-in-person in some instances, and must proceed with caution, seeking the court’s guidance where appropriate.