SUMMARY
The rule without prejudice (“WP”) generally prevents statements that were made in a real attempt to fulfill an existing dispute before the court as evidence before the Court of Justice. Usually these statements in communication between the opposing parties are made a dispute.
Can WP privileges be connected to the documents created by third parties who are not parties of the dispute? This was a question in front of a deputy judge of the English Supreme Court (“Court”) in BNP Paribas Depots Services LTD against Briggs & Forrester Engineering Services Ltd. [2024] EWHC 2575 (TCC)[1].
background
A dispute arose from a contract with which the applicants (“trustee”) commissioned the accused (“Briggs”) to carry out certain renovation and construction work.
A main dispute between the parties was the scope of their respective responsibilities in the context of the contract with regard to the identification and removal of materials that contain asbestos.
Before the legal proceedings began, the parties involved WP negotiations. Although the negotiations have never led to an agreement, the trustees were involved in third parties without informing Briggs, to carry out a survey in the hope that the resulting reports (“report”) would continue to support support for further negotiations between the parties and thus.
Before the court proceedings, the trustees made an application to the court to prevent Briggs from based on the reports and argued that the reports were covered by WP privileges. (It is not explained in the judgment why no legal rights were asserted in the reports.)
Decision of the court
The court found that the main problem was as follows: Under what circumstances, if at all, can documents that are not themselves between the parties, but have settled the disputes, be covered by WP privileges?
The Court of Justice examined the English Court of Appeals in Rabbi in Mendoza & Co. [1954] 1 WLR 271[2]. The trustees stated that this judgment was “Not to be distinguished materially”From the present case.
In RabinThe plaintiff sued a company of the receipt that waned in the measurement of property. Before the lawsuit began, the plaintiff informed the defendant to WP that the plaintiff had come across the survey that the accused had made because a construction company had refused to give money for the house. During this conversation, an understanding was achieved that the accused would inquire whether an insurance company was willing to compensate a possible risk of damage to the house so that a legal dispute could be avoided. A report was then received, but no agreement was reached. The court in Rabin The report was covered under the protection of the WP privilege.
When considering what the reason of the earlier decision in the Rabin The court found that there were two separate questions / bases in the game Rabin. The first basis was whether the WP privilege was associated with the communication in question and the second basis was whether there was an express or implicit agreement between the parties that they would not rely on this communication in the legal proceedings. The court decided that it was not right to say that Rabin It was only about whether an effective express or implicit agreement was not to use the communication in question.
Rather, the Court emphasized that the report of the surveyor in Rabin Some of the mutually agreed mechanics of the parties with which the parties agreed that they would drive their negotiations and try to solve their dispute. According to the court, such a decision was based on public policy on which the WP rule is based, but not only on the contractual agreement of the parties.
As such, the court decided that the WP privilege as a general principle can be connected to the communication of a party with third parties if such communication is part of a dispute settlement mechanism that is too agreed by the parties.
The court also proposed another example[3]. However, this scenario did not apply to the present case.
In view of the principles mentioned above, the court decided that the reports in the present case were not treated by WP privileges because:
- There was no evidence that the report had been prepared according to a mutual agreement that the trustees would instruct the report between the parties as part of an agreed dispute settlement mechanism.
- The trustees commissioned the report unilaterally without informing Briggs.
While the Court pointed out that the reports may be taken into account under legal disputes, the court did not make a decision on this point. (It seems that this point was not addressed by both parties.)
Diploma
While the WP rule usually applies to the correspondence between parties, it can also apply to communication with third parties under restricted circumstances, including reports you have created.
If a party intends that a report created by third parties, which is supported in WP negotiations, should not be brought to court from the other side, this party should ensure that the report falls under the WP rule or is calculated under legal disputes.
[1] This judgment was forwarded on October 10, 2024, but the edited version was only published for publication on March 26, 2025.
[2] The deputy judge noticed this RabinAfter he was approved by the British House of Lords, he was binding.
[3] The hypothetical example that the court gave as follows: If the directors of Party A have exchanged parties to a WP meeting with the party Be -Mails and propose the comparison conditions in party A during the meeting, these e -mails could be covered under WP.
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