When Will The Courts Order Disclosure Of Without Prejudice Communications

Author:Ms Anna Myrvang
Profession:Clyde & Co
 
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Master Clark considered the law on disclosure of without prejudice communications in his recent decision in EMW Law LLP v Scott Halborg [2016] EWHC 2526 (Ch). He 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 there was no prejudice to the parties who owned the privilege, meaning there was no public policy reason to refuse admission of the documents into evidence.

A disclosure application came before Master Clark in proceedings brought by a firm of solicitors against an individual, Mr Halborg (also a solicitor), to recover unpaid fees in respect of work done under an agency conditional fee arrangement (CFA). The firm had acted as agent for Mr Halborg providing legal advice in connection with a claim Mr Halborg had been engaged to bring against a firm of architects.

The underlying claim was settled pre-trial. The bill of costs included a claim for the agency charges, but these were disputed by the firm of architects in full on the basis that the work was duplicative of that carried out by Mr Halborg.

A dispute then arose between the firm of solicitors and Mr Halborg with regards costs recovery matters, specifically in relation to implied terms within the agency CFA entered into between the firm and Mr Halborg.

EMW applied for specific disclosure from Mr Halborg of various categories of documents relating to the costs recovery in the underlying claim. Master Clark had to consider Mr Halborg's objections to the disclosure application, including on the grounds that documents in one of the categories sought were protected by without prejudice privilege.

The relevant category of documents in which privilege was claimed comprised "correspondence, attendance notes or meeting notes relating to communications between [Mr Halborg] and [the law firm retained by the architects] from 22 July 2011 to date, relating to any discussion, negotiation or settlement of [Mr Halborg's] costs in the substantive claim".

The complication in this case was that any privilege attached to the relevant documents did not belong to Mr Halborg from whom disclosure was being sought, but jointly to the parties to the underlying proceedings. Each of the underlying parties was put on notice of the application for disclosure. The firm of architects did not respond. The underlying claimants (through Mr...

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