Linsen International Ltd v Humpuss Sea Transport Pte Ltd [2010] EWHC 303 (Comm)

This case raised the position of without prejudice material in the context of a without notice application. The applicants sought to set aside a freezing order, contending that pursuant to the duty of full and frank disclosure, the content of without prejudice discussions should have been raised before the judge at the time of the without notice application.

Christopher Clarke J found that “if it is clear that without [the without prejudice material] the court may be misled”, that material should be adduced in a without notice application.

Comment

As Christopher Clarke J recognised, the provision of without prejudice material without the permission of the other party to that material raises a number of diffi cult considerations, including the balancing of the claimant’s duty not to disclose such material, the potential detriment to the defendant if the material is adduced (and in particular, any admissions contained in that material), the potential for the defendant to allege that the claimant improperly produced such material and resultant satellite disputes, and the potential argument as to waiver by the claimant of other without prejudice material as a result. It is little wonder, therefore, that Christopher Clarke J advocated a “relatively robust approach against holding disclosure to be necessary”. He rejected tests of “compellingly obvious need” or “manifest impropriety”, preferring the test set out above. This does, however, leave clients with a diffi cult balancing exercise that is vulnerable to criticism either way.