Generally, the WP rule means that correspondence generated as part of a genuine attempt to settle cannot be used in evidence before the court. There are however, certain exceptions to this rule. This article will briefly summarise some of the exceptions to the WP rule, and in particular, the exception of unambiguous impropriety.
There are various exceptions to the WP rule, the most common of which is when a document is marked ‘without prejudice save as to costs’, i.e. the correspondence can be referred to once the court has decided the substantive action and is considering how to award costs. A further exception may be where there is a disagreement over whether a settlement has been reached or not.
Other (and arguably more serious) exceptions include where there has been misrepresentation or fraud, or there has been some undue influence which may lead the Court to finding that a settlement should be set aside.
Alternatively, WP correspondence may be used to evidence perjury, blackmail and/or unambiguous impropriety.
In one of our recent cases we made an application to rely on WP correspondence in the course of proceedings, on the basis that the exception of unambiguous impropriety applied. In that matter, the Claimant had claimed that the value of their case had been £120,000, but later sought to suggest to the Court that they only ever considered the value to be half that (so as to justify the lower Court fee they paid). The WP correspondence clearly showed that this was not the case. The other side eventually conceded the point (though all impropriety was denied) and the WP correspondence was adduced in evidence.
In order to adduce WP correspondence on the basis of unambiguous impropriety there are two elements that need to be established: (1) there has to be some impropriety and (2) that impropriety also has to be unambiguous. If, for example, there was impropriety at a mediation, but no one had a note of what was said during the course of the mediation, then it may be difficult to prove that the impropriety was unambiguous. The circumstances must therefore be clear and case law sets out that there must be an “abuse of a privileged occasion”.
It is likely that the exception of unambiguous impropriety will apply in only a handful of cases, and there is a fairly high hurdle to get over if you would like to rely on this exception. However, for that small number of cases where there has been a clear abuse of a privileged occasion then unambiguous impropriety might be something worth considering.