In Keith Morris v William Simon Williams [2025] EWHC 218 (KB) the Court considered the exceptions to the general rule that without prejudice correspondence is inadmissible as evidence.
The law on without prejudice correspondence
In Unilever PLC v The Procter & Gamble Company [1999] EWCA Civ 3027 the Court of Appeal identified six exceptions to the general rule that without prejudice correspondence is inadmissible as evidence. These are:-
- Settlement – to determine whether the correspondence has resulted in an agreement and if so, the terms of that agreement;
- Fraud/misrepresentation/undue influence – to show an agreement purportedly concluded between parties should be set aside on these grounds;
- Estoppel – to give clear evidence of a statement made by one party in negotiations on which the other party is intended to act and does so;
- Unambiguous impropriety – to provide evidence of what the other party said or wrote in a without prejudice context if the exclusion would act as a clock for perjury, blackmail or other unambiguous impropriety;
- Delay – to explain delay or acquiescence;
- The Muller exception – to show a party acted reasonably in mitigating its loss by reaching a settlement with a third party.
Background
The Claimant brought proceedings seeking to recover damages for personal injuries resulting from a road traffic accident with the Defendant. The Claimant’s solicitors sent a letter marked “Without Prejudice – save as to costs” to the Defendant’s solicitors in which they made it a term of settlement that the Claimant would admit they were fundamentally dishonest in respect of some of the representations made in his claim, albeit on a non-disclosure basis only. The letter is annexed to the end of the judgment.
The Defendant made an application to the Court to introduce the letter as evidence on the basis that it fell under the ‘unambiguous impropriety’ exception. He stated that the letter was within the remit of this exception as it was evidence that the Claimant accepted he had been fundamentally dishonest in relation to at least some aspects of his claim, and therefore it was averred that he should not be allowed to pursue a case where he was disputing he had been dishonest.
Decision
At the hearing of the application, before considering the letter’s admissibility, District Judge Dodsworth considered whether an admission was made at all. In doing so the fact that the letter was carefully written by experienced solicitors was taken into account before finding that it had contained a clear admission that the Claimant had been fundamentally dishonest.
The Judge then considered the unambiguous impropriety exception, finding that it did fall within this. It was concluded that the admission did more than exaggerate the Claimant’s position, but in fact crossed the line into unambiguous impropriety. The Judge explained that if the letter was excluded then there would be a risk of (i) the Claimant perjuring themselves but also (ii) that there would be a certainty that “the Claimant’s pleaded case was being put forward on a (at least partly) false basis.” It is the latter of these considerations that tipped the scales towards unambiguous impropriety, mere risk of a party perjuring themselves is not enough to warrant use of the exception.
District Judge Dodsworth emphasised the importance of public policy both in allowing without prejudice correspondence to exist in order to encourage settlement between parties, but also in circumstances where the need for full disclosure overrides this general rule as was the case here.
Implications
This decision emphasis that the general rule regarding without prejudice correspondence is not absolute and can be superseded by unambiguous impropriety, or any other exceptions.
It also serves as a reminder to lawyers to remain cautious about what is said in without prejudice correspondence. Such correspondence is not guaranteed absolute protection from admissibility and as such, without prejudice communications should be drafted with the thought that it could eventually be put before the court in mind.
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