The claimants sued the defendants for losses incurred as the result of the transfer of the claimants' benefits under occupational pension schemes to an offshore scheme. The defendants contended that there had been no reliance on them and that the claimants had relied on their own independent financial advisers (IFAs). They brought third party claims against the IFAs in question seeking contribution. The claimants' lawyers had a without prejudice meeting with the lawyers representing some of the IFAs. Although in many ways they did not have a common interest in their approach to the litigation, they did have a common interest in establishing that the defendants could not defend itself against the claimants by throwing the entire responsibility (by way of defence and not simply by way of contribution) onto the IFAs. The defendants sought disclosure of the claimants’ solicitors’ agenda of the meeting, correspondence between those solicitors and the IFAs and/or their legal representatives relating to the meeting and attendance notes of the meeting. The claimants argued that these documents were protected by without prejudice privilege which in their view should extend to discussions concerning the proceedings generally, including the expression of views on the strengths and weaknesses of the claimants' claims, the defendants' defences and the additional claims, the discussions of tactics and case management issues.

The judge rejected this argument. Discussions which are clearly directed at avoiding litigation by settling disputes are subject to without prejudice privilege but this does not include discussions aimed at progressing the litigation so as to ultimately achieve settlement.

However, the documents concerning the battle plan, the merits and tactics were likely to be protected by litigation privilege. Documents concerning disclosure and case management might well not be disclosable at all.

Comment: negotiations between parties to multi-party disputes raise difficult questions about privilege. Where the identity of interest between two parties is so close that they could have used the same lawyer, common interest privilege will apply – this was not the case here. Whilst without prejudice negotiations between some of the parties to the litigation will not be disclosable to the other parties, the position may be different once that litigation has concluded. Settlement negotiations in the earlier proceedings may be disclosable to a third party in subsequent proceedings where they are relevant not as admissions but as to the reasonableness of the settlement (Muller v Linsley & Mortimer).