Disclosure of Without Prejudice Correspondence
In Berkeley Square Holdings and Others v Lancer Property Asset Management Ltd and Others [2020] EWHC 1015 (Ch) the High Court held that passages from a Defendant’s mediation position paper were admissible in order to rebut allegations of fraud.
In this case proceedings had been brought by the Claimant against the Defendant for fraud. The Defendant sought to rely on the fact that the Claimant had known about and approved the transactions which were said to constitute a fraud as they had been mentioned in the Defendant’s position paper for an earlier mediation.
The Claimant wanted to prevent reliance by the Defendant on the Position Paper on the basis that it was subject to without prejudice privilege however the Defendant argued that the position paper should be admitted under one of the three established principles to the without prejudice rule.
The court agreed holding that the exception set out in Unilever plc v Proctor & Gamble Co [2000] 1 WLR 2436 - setting aside a contract for misrepresentation, fraud or undue influence, had never been applied in a reported case to a mediation position paper but noted that the formulation in Unilever had been approved by the appellate courts and as such the relevant statements were admissible.
It is well established that the without prejudice rule is not absolute and is subject to exceptions which are not closed. This decision shows that the fraud exception is wider than previously considered in allowing defending parties to admit without prejudice evidence to rebut allegations of fraud, misrepresentation or undue influence and reminds us that protection under the without prejudice rule is not guaranteed.
Posted on 11/04/2020 by Ortolan
