Released for publication on 26th March 2025
This is a redacted version of the judgment that was handed down, in its original unredacted form, as a confidential judgment at 2:00pm on 10th October 2024 by circulation to the parties via email. At that time, no version of the judgment was published (see the reasons set out within paragraphs 14 to 19 of the judgment) in circumstances where it appeared that it might be possible to publicly release the original version of the judgment within the next few months. It has subsequently become apparent, however, that significant further time will elapse before the original version of the judgment can be published. I have therefore directed that this redacted version of the judgment be published today, 26 March 2025, by release to the National Archives. This redacted version of the judgment may be cited in any court proceedings in the same way as the original version could have been cited, had it been published.
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MR ALAN BATES
Deputy Judge Alan Bates:
This is a redacted version of the judgment. Text in this version which appears within square brackets and is also underlined is text that has been inserted in replacement for text that appeared in the original version of the judgment.
Introduction
- 'Without prejudice privilege' ("WPP") attaches to communications between parties to a dispute attempting to settle the dispute. WPP in this jurisdiction is a rule of evidence rooted in considerations of policy and pragmatism. It enables parties in dispute with one another to negotiate freely and candidly, knowing that, if the negotiations are not successful, the content of their negotiations (including any offers or concessions that may have been made) could not be deployed against them in court proceedings.
- That much is well established by consistent case-law over many decades. What is, perhaps, less clear is the answer to a question raised by the application on which I am giving judgment (the "Application"). In what circumstances, if any, will WPP attach to a document that was not itself a communication between the disputing parties and which could not, therefore, have itself formed part of the negotiations between them?
- The Application is brought by the Claimants seeking resolution of an interlocutory matter that has arisen in the course of proceedings for determining a claim they have brought against the Defendant ("Briggs"), a building services supplier. The Claimants are the trustees of a unit trust that owns the freehold of a skyscraper in Manchester called City Tower. (In this judgment, I will refer to the Claimants, together, as "the Trustees".) The claim arises out of a contract (the "Contract") by which the Trustees employed Briggs to carry out certain renovation and building works ("Works") in City Tower.
- One of the main elements of the contractual dispute between the parties which has given rise to the claim is a disagreement as to their respective responsibilities under the Contract in relation to the identification and removal of materials containing asbestos (i.e. 'asbestos-containing materials' ("ACM")) within the parts of the building where the Works were to be carried out. Specifically, the parties disagree as to: (a) which party was, on a proper interpretation of the Contract, responsible for investigating the presence of ACM; and (b) whether the works Briggs agreed to perform in exchange for payment of the contract sum specified in the Contract includes whatever ACM removal might be found to be necessary.
- It is common ground that the appropriate way of investigating the presence of ACM in the relevant parts of the building would – regardless of which party was contractually responsible for so doing – involve the commissioning of a 'refurbishment & demolition' ("R&D") survey. An R&D survey is a specialist survey for identifying the presence and types of ACM within a building, or an area of a building, where works are to be carried out, prior to carrying out such works.
- By the Application, the Court is asked to determine whether Briggs should be barred from relying, at the forthcoming trial of the claim, on certain documents. The documents in question are R&D survey reports that were provided to the Trustees in early 2023 by surveyors that were commissioned on their behalf ("Survey Reports").
- As explained in more detail further below, copies of the Survey Reports were recently provided by the Trustees to Briggs at around the same time as the parties exchanged disclosure and inspection with each other pursuant to their litigation disclosure obligations, but not (it is said by the Trustees) as part of such disclosure. Briggs had never previously been provided with sight of the Survey Reports or been told by the Trustees that the Survey Reports existed. The Trustees provided the Survey Reports to Briggs' solicitors within a password-protected electronic folder sent under cover of a letter stating that the documents contained within the folder were being provided 'without prejudice'. The letter further stated that the opening of the folder by Briggs' solicitors would constitute acceptance of certain conditions, including that Briggs would not seek to rely on the documents at trial. One of the grounds on which the Trustees say that the Court should prevent Briggs from relying on the Survey Reports at trial is that Briggs agreed, by the act of its solicitors in opening the folder and viewing its contents, to be bound by that condition.
- The Trustees also say that the Survey Reports are, in any event, properly covered by WPP. The Trustees' basis for that position is that they commissioned the R&D surveys pursuant to, and/or in furtherance of, negotiations between the parties that took place over the course of 2022 ("the 2022 Negotiations"). The 2022 Negotiations were directed at seeking to compromise the disputes between the parties relating to the Contract. It was common ground before me that the communications between the parties forming part of the 2022 Negotiations were all covered by WPP.
- In support of their position that the Survey Reports are covered by WPP, the Trustees attach particular significance to the content of the 'without prejudice' ("WP") communications that took place between the parties by way of: (a) a meeting that took place between them on 11 October 2022; and (b) subsequent related email exchanges during the last quarter of 2022. [TEXT REDACTED]
- It is common ground that the 2022 Negotiations never resulted in any agreement. [TEXT REDACTED]
- The Trustees contend that, in these circumstances, WPP extends to the Survey Reports. In support of that position, Mr Taczalski, who argued the Trustees' case before me, placed particular emphasis on his point that the Survey Reports effectively revealed part of the content of the 2022 Negotiations. [TEXT REDACTED]
- Briggs, represented before me by Mr Frampton, disagrees. Mr Frampton submitted that, as a matter of law, the correct starting point is that WPP protects communications between parties to a dispute which are aimed at compromising the dispute. Plainly, as the Survey Reports were provided only to the Trustees and not shared with Briggs, they were not interparty communications. Insofar as the case-law recognises that there are circumstances in which WPP may attach to reports prepared by third parties and provided to only one of the parties to the dispute, that could be so only if the parties to the negotiations had mutually agreed that a report be obtained pursuant to their negotiations and that they would not seek to rely on that report in any court proceedings for determining the dispute. [TEXT REDACTED]
- The Application has come on for hearing before me on an expedited basis because the trial is listed for later this month, beginning on 21 October 2024. The parties are rightly keen to retain that listing, if possible.
Confidentiality restrictions
- Given the nature of the Application (directed, as it is, at preventing a party from placing certain material before the trial judge), it would not have been appropriate for the designated trial judge (HHJ Stephen Davies, sitting as a High Court Judge) to hear it. Further, it is appropriate, in the interests of justice, to put reasonable measures in place to avoid the risk of the trial judge becoming aware of the substance of the Application and the content of this judgment, at the present time.
- Accordingly, at the beginning of the hearing of the Application (which took place remotely via Microsoft Teams), I acceded to a proposal by the Trustees that I order, under CPR 39.2, that the hearing take place in private. I also ordered that, until the conclusion of the proceedings or further order, there is to be no publication by anyone of any information about the Application or the hearing, save for the information made public by way of the Cause List, save insofar as necessary as part of the proceedings. As the hearing took place in private, there were no members of the press in attendance. But that order was still appropriate so that the lawyers and other individuals who were present at the hearing are required to avoid publishing information about the Application (since such information might then be picked up by others and potentially come to the attention of the trial judge).
- In addition, given the possibility that the trial judge may refer to documents on the court's 'CE-file' electronic portal when preparing for the trial, I informally directed the court staff and the parties' counsel to ensure that material relating to the Application is not placed on CE-file for the time being.
- I also indicated to the parties that I would be handing down my judgment as a confidential judgment, i.e. restricted to the parties and not sent to the National Archives at this time. This will be a temporary expedient: this judgment will be made public and sent to the National Archives for publication on their judgments portal as soon as is appropriate, after the trial has taken place and the trial judgment handed down.
- I am satisfied that all these restrictions constitute a proportionate interference with the principle of open justice. They do not go beyond what is reasonably necessary in order to protect against potential prejudice to the administration of justice, and their effect is merely to delay, rather than prevent, publication of information, probably for no more than a few months.
- This judgment includes references to another judgment, given in proceedings involving the same parties and relating to the same Contract, which has [been handed down as a confidential judgment, the published version of which redacts the names of the parties (the "Previous Confidential Judgment")] [TEXT REDACTED].
Background
- City Tower is a 1960s skyscraper in the Piccadilly area of Manchester. It is in practice managed on behalf of the Trustees by an asset manager, Schroders. Schroders is itself assisted by certain more specialist entities where necessary – such as, in relation to refurbishment works such as the Works, a firm of project managers and surveyors called Cumming Group.
- The Contract with Briggs was on the terms of an amended 2016 JCT Design & Build ("D&B") contract. The Contract appears to have been agreed in around December 2020 but was signed in February 2021. The Works were to two stair-cores in City Tower: one used for firefighting, and one as an escape route in the event of fire. Those stair-cores run from the top to the bottom of City Tower. There is a pressurisation system in the stair-cores, to keep the stairs free of smoke in the event of a fire. Services rise through risers in the locations of the stair-cores. The Works included the replacement of the pressurisation system, as well as the carrying out of all ancillary building works.
- After the Contract was signed, disputes arose between the Trustees and Briggs. For present purposes, it is not necessary for me to set out in detail all the matters about which the parties have been unable to agree as to the meaning of their contract and their respective obligations under it. Suffice it to say that one of the principal areas of dispute relates to ACM and, specifically, who is responsible for commissioning relevant surveys and for meeting the costs of removing the ACM. Various elements of City Tower, including the risers upon which Briggs was to work, incorporate ACM. It will be necessary to remove the ACM in the course of the Works, and this will involve significant cost and complexity, for reasons that include the presence of multiple services in the stair-cores. It may be that the parties to the Contract – or, at any rate, Briggs – entered into it in circumstances where (for whatever reasons) they were not fully aware of, or did not fully appreciate, the extent of the ACM that would need to be removed and/or of the complexities of carrying out that removal.
- The parties have taken opposing positions as to which of them, on a true interpretation of the Contract, bore the risk of the ACM removal costs being higher than may have been anticipated:
i) Briggs' position is that, under the terms of the Contract – (a) the Trustees are responsible for commissioning an R&D survey, and (b) the price payable by the Trustees to Briggs may be subject to adjustment having regard to the extent to which the required ACM removal works will be greater than had been indicated by a report from a certain survey that had previously been carried out.
ii) The Trustees, in contrast, take the position that the Works that Briggs, by the Contract, agreed to perform in exchange for payment of the specified contract sum included both – (a) whatever asbestos surveys and investigations were needed for arriving at the final design, and (b) whatever ACM removal works turned out to be needed in order to carry out the project in accordance with the design.
- The carrying out of the project effectively came to a halt at the end of 2021 when AA Woods, which had been appointed by Briggs as its ACM removal subcontractor, withdrew its labour in circumstances where it had not been paid. Throughout 2022, there were various meetings and exchanges of correspondence between, on one side, the Trustees (or, in practice, often Schroders or Cumming, who were working on the Trustees' behalf) and, on the other side, Briggs, directed at resolving their dispute. These were what I have termed "the 2022 Negotiations".
- Some, but not all, of the correspondence between the parties in the course of the 2022 Negotiations was expressly headed "WITHOUT PREJUDICE". But this did not have the consequence that only those communications were subject to WPP. As the [Previous Confidential Judgment] found, all the interparty communications forming part of the 2022 Negotiations attracted WPP.
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- [TEXT REDACTED] [A summary of the] chronology of what happened in early 2023 is [as follows]:
- [On 6 January 2023, the Trustees issued Non-Completion Notices notifying Briggs of its failure to complete the Works by the adjusted completion date.
- Briggs disputed the adjusted completion date, and subsequently issued a notice identifying what it said were suspension events, referring back to the asbestos and structural issues which had formed the basis of the discussions in the previous years.
- The disagreement continued and Briggs issued a notice stating that it was terminating its employment. This was responded to by Cumming Group, rejecting the validity of the notice and accepting what it said was Briggs' repudiatory breach, on 27 February 2023.]
- Thus, by the end of February 2023, Briggs had purported to terminate the Contract on the basis (essentially) that the Trustees were preventing it from completing the Works by not providing a further asbestos survey and not accepting that certain works were variations. The Trustees' response had been to treat the purported termination as a repudiatory breach and to accept it.
- Nor was any compromise agreed thereafter. The parties' disputes regarding the Contract have generated considerable litigation, including a construction adjudication, followed by proceedings in this Court by which: (a) Briggs sought to enforce the adjudication decision; [and] (b) the Trustees sought a declaration that the adjudication decision was unenforceable by reason of Briggs having improperly relied, before the adjudicator, on material that formed part of the exchanges between the parties during the 2022 Negotiations and was covered by WPP. Those enforcement proceedings were determined by the [Previous Confidential Judgment], which found that: (i) Briggs had relied, before the adjudicator, on material that was properly subject to WPP and was therefore inadmissible; and (ii) in all the circumstances, this had led to a breach of natural justice which vitiated the adjudication decision and rendered it unenforceable.
- The present proceedings are upon a further claim, namely a claim by the Trustees for a declaration as to how the Contract was terminated.
- A case management conference ("CMC") in these proceedings took place before me in March 2024. The order that I made following that hearing ("the CMC Order") included provisions about disclosure. Specifically, each party was ordered to provide disclosure and production of documents responsive to the agreed requests ("Document Requests") set out in schedules agreed between the parties which I annexed to the CMC Order. The categories of documents to be disclosed by the Trustees included:
i) Briggs' Disclosure Request #2: "Documents showing whether and when the Trustee carried out further R&D survey(s) after 8 December 2021 and a copy of any such survey(s)" (within a date range ending 14 February 2023); and
ii) Briggs' Disclosure Request #4: "All records and correspondence (including internal discussions) involving Cumming, and Schroder and/or the Trustees and/or their representatives:
…
d. On the need for an R&D Survey …;
e. On the extent of asbestos in the areas to be worked upon by Briggs".
- The deadline specified in the CMC Order for disclosure and inspection to be exchanged was 26 April 2024, but that deadline was subsequently extended such that disclosure was exchanged on 28 June 2024.
- As already noted above, the trial of the claim is listed to start on 21 October 2024.
The issues I need to decide
- Each party has advanced before me a 'technical' argument, grounded in a precise application of the CPR, which it says suffices for it to be victorious upon the Application.
i) On behalf of the Trustees, Mr Taczalski submitted that a sufficient basis for me to grant the order sought by their Application was that Briggs had not brought an application under CPR 31.19(5) asking the Court to rule against a claim by a disclosing party that a particular document can be withheld from inspection. The Survey Reports had been provided to Briggs separately from the disclosure process and under an express condition that they would not be relied on at trial. As Briggs had not brought an application to challenge this, and as Briggs had not received disclosure and inspection of the Survey Reports, there was (the Trustees submitted) simply no basis on which Briggs could be entitled to rely on the Survey Reports at trial; and, therefore, the Trustees were entitled to an order to restrain Briggs from so doing. That was so even if the Trustees had not been entitled to withhold disclosure and/or inspection of the Survey Reports; in other words, even if an application by Briggs under CPR 31.19(5) would have been successful. (I note in passing, however, that CPR 31.19(5) is concerned with situations where a party has withheld inspection, and I therefore doubt whether it is the relevant CPR provision for challenges seeking specific disclosure of documents that have not even been disclosed.)
ii) On behalf of Briggs, Mr Frampton submitted that a sufficient basis for me to dismiss the Application was that, even if (quod non) the Trustees were right that the Survey Reports were covered by WPP, the Trustees were plainly in breach of their disclosure obligations by failing to disclose those documents. That is because, even if the Survey Reports were privileged by WPP from being relied upon at trial, the Trustees should still have listed the Survey Reports within their disclosure List of Documents. WPP, being a rule governing admissibility of evidence, could not be a basis for a party to refuse to disclose a document. Had the Trustees listed the Survey Reports in their List of Documents, then Briggs would have been able to refer to that List at the trial in order to show the trial judge that the Trustees had ultimately commissioned an R&D survey, even if Briggs were not permitted to show the trial judge the contents of the Survey Reports. Mr Frampton developed his legal submissions in support of that argument by way of additional written submissions he sent me after the hearing, having sought my permission to do so. I afforded Mr Taczalski an opportunity to respond to those submissions, which he did.
- In my judgment, it is appropriate for me to approach the Application with a view to doing justice in a pragmatic and proportionate way, guided by the Overriding Objective in CPR 1.1. The hearing before me took place around 3 weeks before the listed trial. The CMC Order I made back in March required the Trustees to provide disclosure and inspection of documents in categories which would have captured the Survey Reports (subject, perhaps, to an argument that the dates of certain of the reports may have fallen outside the date range). The practical position at the time when the Application was filed was that Briggs was already fully aware of both the existence and the content of the Survey Reports. In the circumstances, the parties have an urgent need to know whether Briggs can rely on the Survey Reports at trial or not. There is nothing to be gained by placing the onus on Briggs to make a fresh application – such as an application for specific disclosure – in order belatedly to obtain disclosure of the Survey Reports, if they should anyway have been disclosed back in June.
- In these circumstances, it makes sense for the Court to prune back the thicket of procedural foliage and focus on deciding the following issues (these being, in my judgment, the issues that need to be decided in order to properly determine whether it is just to permit Briggs to rely on the Survey Reports at the trial):
i) WPP issues:
a) The law: in what circumstances, if any, can documents that are not themselves communications between parties to a dispute but which are aimed at resolving the dispute, be covered by WPP?
b) Applying those legal principles, are the Survey Reports covered by WPP?
c) If the Survey Reports are covered by WPP and therefore cannot be relied upon by Briggs at trial, are the Trustees entitled to withhold (i) disclosure, or (ii) inspection, of those reports?
ii) If the Survey Reports are not covered by WPP, do the circumstances by which Briggs received, and then chose to access the file containing, the Survey Reports have the consequence that Briggs should be prevented from relying on them at the trial?
The law: in what circumstances, if any, can documents that are not themselves communications between parties to a dispute, but which are aimed at resolving the dispute, be covered by WPP?
- The authoritative description of WPP and the communications to which WPP attaches was provided by the House of Lords in Rush v Tompkins [1989] AC 1280, per Lord Griffiths at 1299:
"The "without prejudice" rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. It is nowhere more clearly expressed than in the judgment of Oliver L.J. in Cutts v. Head [1984] Ch 290 , 306:
"That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. … The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability."
The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence "without prejudice" to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase "without prejudice" and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission. I cannot therefore agree with the Court of Appeal that the problem in the present case should be resolved by a linguistic approach to the meaning of the phrase "without prejudice." I believe that the question has to be looked at more broadly and resolved by balancing two different public interests namely the public interest in promoting settlements and the public interest in full discovery between parties to litigation."
- In RWE Npower Plc v Alstom Power Limited [2010] CILL 2835, HHJ Havelock-Allan QC explained, at [49]:
"(1) The justification for the privilege attaching to without prejudice communications is not only the public policy of encouraging the negotiated settlement of disputes but also the express or implied agreement of the parties that such communications should be treated as confidential. (2) The fact that a document is marked "without prejudice" is not conclusive as to its status, although it is often a strong pointer. As a general rule a document marked "without prejudice" is privileged unless it was not written as part of a process of negotiation or with the intention of promoting compromise. The test for determining whether the privilege applies is an objective one. As Laddie J held in Schering v CIPLA: "The court has to determine whether or not a communication is bona fide intended to be part of or to promote negotiations. To determine that, the court has to work out what, on a reasonable basis, the intention of the author was and how it would be understood by a reasonable recipient". (3) Once a communication is covered by without prejudice privilege, the court is slow to lift the cloak of that privilege unless the case for doing so is absolutely plain. There are certain exceptional circumstances where it may be permissible to admit into evidence without prejudice communications which are privileged."
- Those statements of principle are most obviously applicable to communications between the parties to a dispute which are aimed at negotiating a resolution. But, as Mr Taczalski submitted, WPP can also, in some circumstances, apply to a communication – such as, for example, a survey report – between a party to a dispute and a third party. In support of that proposition, Mr Taczalski referred me to an authority that was cited and approved by the House of Lords in Rush, namely the Court of Appeal judgment in Rabin v Mendoza & Co. [1954] 1 W.L.R. 271. Mr Taczalski's skeleton argument described that case as being "materially indistinguishable" from the present case.
- Rabin was a case in which there had been WP negotiations between two parties. As a consequence of something provisionally agreed in those negotiations, and in order to facilitate them, one party had commissioned and obtained a surveyor's report. The Court of Appeal found that the report was covered by WPP. Per Romer LJ at 274:
"On the … question whether the report is entitled to the protection of the without prejudice quality, if I may so describe it, which characterized the interview which took place, it is in my opinion abundantly clear that it is. The affidavit of the solicitor, who attended the conference with Mr. Mendoza, a partner in the defendant firm, states:
"The interview terminated upon the understanding that. Mr. Mendoza would make inquiries of the possibility and cost of obtaining insurance cover and then come and see me again and let me know what he was prepared to do, after which I would take my client's instructions."
It appears from the evidence that it was in pursuance of the understanding that was arrived at at that interview that the defendants gave instructions for an independent survey for production to the insurance company.
It seems to me perfectly plain in those circumstances that the only object of obtaining the report was to implement the understanding which was arrived at during the interview which was without prejudice; therefore, in my judgment, the protection extends to the report which was obtained in pursuance of that understanding."
- Romer LJ stated expressly that he concurred with the reasons given by Denning LJ. Denning LJ had stated that, not only was the survey report inadmissible at trial, but also that the party that had obtained the report should not be ordered to provide "production" (or, in the modernised parlance of the CPR, "inspection") of it. Denning LJ justified that latter conclusion by noting that there had been a mutual understanding between the parties that a surveyor's report would be obtained, and then inferring from that mutual understanding an agreement between the parties that neither of them would seek to rely on the report at trial:
"… [P]roduction can be ordered of documents even though they may not be admissible in evidence. Nevertheless, if documents come into being under an express, or, I would add, a tacit, agreement that they should not be used to the prejudice of either party, an order for production will not be made.
This case seems to me to fall within that principle. This report was clearly made as a result of a "without prejudice" interview and it was made solely for the purposes of the "without prejudice" negotiations. The solicitor for the plaintiff himself says in his affidavit that at the time of the interview it was contemplated that steps such as these should be undertaken."
- Mr Frampton, for Briggs, submitted that I should approach Rabin with caution as it had been criticised by leading commentators as being inconsistent with the modern law:
i) Zuckerman on Civil Procedure: Principles of Practice (4th edition, 2021), at [17.27]:
"The Court of Appeal held that the report was privileged because it was made as a result, and for the purpose, of without prejudice negotiations. Nonetheless, it is difficult to accept that a report made by a non-party for the purpose of being used to obtain insurance cover is privileged merely because the need for such a report arose in the furtherance of settlement negotiations. After all, the plaintiff in that case would have been at liberty to call the surveyor to testify as to what he found. The decision is better explained on the grounds, which were stressed by the Court of Appeal, that the parties had agreed that they would not use the surveyor's report in any later proceedings. It is suggested, however, that such agreement should not be inferred merely because the need for such a report arose in the course of settlement discussions."
ii) Phipson on Evidence (20th edition, 2021), at [24-21]:
"Rabin looks a surprising decision to modern eyes. Perhaps the answer is that the principle is unobjectionable but the application to the facts is surprising and, in modern times, suspect. Whilst no doubt the parties could reach an express agreement that correspondence not be referred to in court, it is suggested that the court must take great care before implying such an agreement."
- In my respectful judgment, however, Rabin is, at least in relation to the scope of WPP, sensible in terms both of its reasoning and its result; and it is anyway binding on me, having been endorsed in Rush. It is a short judgment that deserves to be read carefully. Denning and Romer LJJ did not say that a report provided by a non-party would attract WPP merely because the need for such a report arose in the furtherance of settlement negotiations. Nor, on my reading, did Romer LJ base his conclusion that the surveyor's report was covered by WPP on there having been an express or implied agreement between the parties specifically that the report would be so treated. Although Romer LJ indicated agreement with Denning LJ, the reliance by Denning LJ on there having been an agreement between the parties that the report would not be relied upon at trial has to be seen in the context of his focus in his reasoning. Denning LJ's focus was not on whether the report was covered by WPP and therefore inadmissible at the trial, but rather on whether the party that had obtained the report had been justified in also refusing to provide the other party with inspection of it.
- Rabin was a case in which the parties had expressly agreed to pursue a particular approach directed at potentially facilitating and achieving a settlement of their dispute. That approach involved the obtaining of a surveyor's report, which would then be used when seeking to buy an insurance policy. In substance, therefore, the commissioning and obtaining of the surveyor's report was a specific element forming part of the parties' mutually agreed mechanics of an 'alternative dispute resolution' ("ADR") process. It was not simply something required either for carrying into effect the terms of a concluded settlement agreement or for generally furthering or facilitating the negotiations. That being so, it would, to my mind, be contrary to the policy underlying the WPP rule to have allowed a party to rely on the report (a report that would never have come into existence at all had the parties not jointly decided that it should be obtained by one of them as part of the mechanism that would, had the insurance policy been obtained, have resolved the dispute). The courts' powers to regulate the admissibility of evidence are sufficiently broad to enable that result to be achieved, essentially for reasons of judicial policy. In order to determine that the report was inadmissible, there was, therefore, no need to fix the parties (essentially as a 'legal fiction') with having impliedly agreed between themselves specifically that neither of them would seek to rely upon the report at trial. Rather, the obtaining of the report could fairly be seen as an extension of the parties' mutual ADR mechanism, even though the report was provided by the surveyor to only one of them.
- I note that Zuckerman's criticism of Rabin is based on an assumption that the party that was seeking to rely on the report would anyway have been entitled to call the surveyor to give evidence. That assumption is, I respectfully suggest, incorrect. If, as the Court of Appeal found, the surveyor's report was covered by WPP, then evidence from the surveyor as to the content of the report would likewise have been inadmissible.
- After having considered the case-law, I consider that the principles applicable for determining whether the Survey Reports are covered by WPP are these:
i) WPP is a rule governing the admissibility of evidence. It provides that, where parties have negotiated with one another for seeking to resolve a dispute, "evidence of the content of those negotiations will, as a general rule, not be admissible at the trial" (Rush v Tompkins, quoted above, emphasis added).
ii) Those words from Rush provide a definitive statement of the WPP rule's focus. But they may not fully capture the rule's reach and effects. For example, it is well established that WPP may also, depending on the circumstances, protect the content of negotiations from being relied on by a third party at a trial of a matter that is separate or distinct from the dispute that the negotiations were aimed at resolving.
iii) The WPP rule does not have the same status as legal professional privilege ("LPP"), which is a constitutional right. The WPP rule is a rule of evidence rooted in considerations of policy: the common law in this jurisdiction has thought it desirable to reduce obstacles to parties to disputes feeling able to negotiate freely and candidly with one another for trying to resolve their disputes out of court.
iv) In addition to the policy-based justification, WPP has been said also to be justified based on the parties' mutual consent that the relevant communications would not be relied upon at trial. The significance of consent as a basis for WPP is illustrated by the fact that, where parties are engaged in WP negotiations, either of them may, unilaterally, choose to communicate an offer on an 'open' basis, provided that it makes the 'open' status of that communication clear (see Cheddar Valley Ltd v Chaddlewood Ltd [1992] 1 WLR 820 at 826). But, equally, mutual consent is plainly not an essential condition for WPP to attach to a communication, since any party to a dispute may unilaterally choose to communicate an offer to the other party on a WP basis, and that other party will not be entitled to rely on that communication at the trial.
v) In my judgment, in any case of doubt as to whether the WPP rule should be applied so as to prevent a party from relying on a document, it will usually make sense to consider that matter keeping in mind the policy that the rule is intended to serve. But it is also right to keep in mind that the WPP rule constitutes an exception from the important starting point that all evidence that may be of assistance to the court in finding out, at a trial, where the truth lies between the parties' competing cases is, in principle, admissible, subject only to certain specific exceptions. There is a potential cost to justice from preventing parties from relying on such evidence, even where that cost is outweighed by competing policy considerations. The courts must therefore take care not to allow the ambit of WPP to expand in ways going beyond what is properly necessary and proportionate for serving its underlying policy justification: Barnetson v Framlington Group Ltd [2007] EWCA Civ 502, at [33], see also [26]-[30].
vi) It should also be borne well in mind that there is no general privilege for documents created in the course of exploring the merits of, or considering how best to respond to, existing or potential litigation. The reach of WPP (and, indeed, LPP) has never extended to protecting all of a party's internal communications, communications with third parties, and other documents generated for the purpose of investigating, or informing the party's decision-making in relation to, a dispute. That is so regardless of whether those communications and documents included, or were intended to inform, the party's consideration of, or were preparatory to pursuing, potential options for concessions, compromise or settlement. Accordingly, if a party dealing with a dispute chooses to generate such documents in circumstances that do not satisfy the tests for attracting legal advice privilege or litigation privilege, then those documents will, in principle, be liable to being disclosed to, and then deployed at trial by, the other party.
vii) Whilst the focus of the WPP rule is on inter-party communications forming part of negotiations, there may, in some circumstances, be documents falling outside of that specific focus, but within a narrow penumbra around it, that the rule will also render inadmissible. One example is a situation of the type illustrated by the Rabin judgment. Where parties to a dispute have, in the course of WP negotiations, come to a mutual understanding as to a step to be taken by one or both of them as part of a mechanism for achieving a resolution, WPP may attach to a party's internal communications and communications with third parties which are for putting that mutual understanding into effect. The parties will therefore be prevented from relying at trial on such communications, which will effectively form part of the interparty negotiations.
viii) As I have explained above, it is incorrect to read the Rabin judgment as justifying the application of WPP to such communications solely on the basis that the court is giving effect to an agreement between the parties that they would not seek to rely on those communications at trial. The true position is that, pursuant to the policy underlying the WPP rule, WPP applies to a report or other communications with a third party which the parties effectively embark upon jointly as an element of their joint efforts to settle their dispute. Such third party communications can fairly be seen as effectively forming part of the negotiations between the parties (just as something said by a third party expert during a WP negotiations meeting between disputing parties which he was invited to attend would be covered by WPP). Where the parties have both consented to the third party's performance of a role forming part of the mechanisms of their WP negotiation process, then subsequent communications with the third party relating to its carrying out of that role will benefit from WPP, as this result would be consistent with the policy justification underlying the WPP rule. That result does not depend on the court finding that the parties also specifically agreed, whether expressly or impliedly, that the communications with the third party would be covered by WPP. I reject Mr Frampton's submissions insofar as they pressed on me that such an agreement was a necessary precondition for WPP to attach to the communications with the third party.
ix) I suggest that a further example of a situation in which communications that are not between the parties to a dispute could be covered by WPP might be where the communications are so closely related to a prospective or ongoing interparty negotiation that permitting a party to adduce them would substantially undermine the utility of the WP rule for serving its underlying policy justification. By way of hypothetical example: consider the situation where a party's directors exchange emails amongst themselves, whilst travelling to a WP meeting with the other party to a dispute, discussing the settlement terms they will 'lay on the table' during the meeting. It seems to me that quite a strong case could be made that those communications should be covered by WPP. One reason supporting that conclusion is that the content of the communications would likely be revelatory of the content of the inter-party discussions in the meeting, thus coming within the words of the classic statement of the WPP in Rush v Tompkins. But even where that reason is not fully made out in the factual circumstances (for example, where the planned interparty meeting did not, in the end, take place), WPP should still cover the communications. That is because failing to afford WPP to the communications would operate to substantially undermine the practical utility of the WPP rule in achieving its underlying policy objective. The hypothetical scenario I have mooted does not appear to have been considered in the case-law on WPP; but this is not entirely surprising, given that such communications will anyway often be covered by litigation privilege, provided that litigation was already "in contemplation" or in progress at the time. (The potential for such communications not to be recognised as being covered by litigation privilege is, perhaps, greater, following the Court of Appeal's judgment in WH Holding Ltd and another v E20 Stadium LLP [2018] EWCA Civ 2652.)
x) I do not suggest that the two examples I have given are necessarily exhaustive of the circumstances in which WPP may attach to a party's internal communications or its communications with third parties. But it is instructive that Mr Taczalski has not been able to show me any case-law illustrating that the courts have recognised WPP as attaching to such communications in other circumstances. As I have observed above, the courts must take care that the reach of the WPP rule is not allowed to expand beyond its proper limits consistent with the rule's underlying policy justification, balanced against the countervailing 'cost' to the policy of enabling courts to determine issues based on consideration of all relevant evidence.
Are the Survey Reports covered by WPP?
- Applying the principles I have set out above, the conclusion I have reached is that the Survey Reports are not covered by WPP. As I will now explain, that decision is driven by my assessment of the factual circumstances in which the TRAC R&D survey was commissioned on behalf of the Trustees.
- Simply put, the evidence does not show that the survey was commissioned pursuant to a mutual agreement or understanding that the Trustees would commission that survey as part of a set of processes or mechanisms by which the parties agreed they would progress their negotiations and seek to resolve their dispute. [TEXT REDACTED] As I explain in more detail further below, the Trustees [TEXT REDACTED] nevertheless chose, in January 2023, to proceed with commissioning TRAC to carry out the R&D survey, doing so without informing Briggs. The Trustees did so (according to the witness evidence I have seen, which I accept) in the hope that the resulting reports would, when available, be of assistance to any further negotiations between the parties and thus promote settlement.
- The Trustees should be commended for their pragmatism and good sense in making that choice, even though settlement was never achieved. But the Trustees, having made that unilateral choice to go ahead with commissioning the R&D survey, do not have a legally sound basis for asserting that WPP attaches to the resulting Survey Reports. Where a party to an ongoing dispute unilaterally commissions a third party to carry out a survey, communications with that third party do not qualify for WPP. That is so even if the party's purpose in commissioning the survey was to promote, assist or inform interparty settlement negotiations.
- The correct legal analysis is, in substance, no different from that which applies with respect to a party's internal deliberations directed at informing its own understanding, consideration or development of potential settlement proposals. Such communications do not attract WPP, even though they could be argued to be aimed at facilitating or assisting ongoing or potential future negotiations for seeking to resolve the dispute.
The circumstances in which, and the purposes for which, the TRAC R&D survey was commissioned and the resulting Survey Reports were written
- The circumstances in which the R&D survey was commissioned on behalf of the Trustees are explained in the witness statement of Ms Heywood, a Partner in Stephenson Harwood LLP, the Trustees' solicitors:
"[34] [TEXT REDACTED]
[35] Therefore, in November 2022, TRAC was instructed to carry out R&D Surveys. It undertook several days of surveying in November 2022, while it was still thought that an agreement may be reached (which would have such surveys as an essential requirement of them). By January 2023, resolution appeared much less likely and the WP Negotiations had stopped, at least for the time being. However, I understand that Schroders took the view that this had been viewed as fundamental for the Defendant, and so the surveys were continued with in January 2023. Although the negotiations had broken down, they had carried on in a stop-start fashion for about a year, and I am told by Schroders that Schroders (and therefore the Claimants) were well aware that their quickest route to a functioning stair-core pressurisation system was to get the Defendant back on site – which meant being prepared and able to provide these surveys in the course of and as part of the WP Negotiations.
[36] Survey reports were then provided to the Claimants as and when they were finalised, which was generally at the end of January and the early party of February 2023. Of course, in mid-February 2023, the Contract was terminated. This said, termination did not necessarily preclude a negotiated settlement, and I understand from Schroders that that was its position at the time, given what it appreciated about the realities of getting another contractor in as opposed to getting the Defendant back (i.e. that it would be more difficult, costly, and would take longer).
[37] Given the above, the Claimants' position is that the TRAC R&D Surveys are subject to the same without prejudice privilege as the WP Negotiations …."
- Further information regarding the commissioning of the R&D survey is provided in the witness statement of Caoimhe Cox, an Associate at Stephenson Harwood, served in reply. Ms Cox explains that TRAC was instructed to provide, and carried out, an R&D survey during November 2022; but it appears that this survey was of limited scope, relating specifically to the smoke ventilation system (renovation or replacement of which was outside the scope of the Works). Although she does not herself say so, the reason why a broader R&D survey was not commissioned by the Trustees at that time may have been that they thought that, given that Briggs had commenced the Works, they needed Briggs' permission to access the risers where the stair-core pressurisation system was to be installed. It was not until January 2023 that TRAC was instructed to carry out an R&D survey of the specific areas in the building where the Works were to have been carried out.
- In relation to how that R&D survey – i.e. the 2023 survey of the risers – came to be carried out, Ms Cox states:
"[5] [The Trustees] were preparing to instruct the TRAC R&D Surveys in December 2022 [TEXT REDACTED] because the Project needed to be restarted as soon as was realistically possible. [TEXT REDACTED]
[6] I am aware that the TRAC R&D Surveys were then instructed in January 2023, and that, at this time, the [Trustees] were still hopeful that a resolution could be reached which would bring the Defendant back to site to complete the Works. …"
- Further exposition of the circumstances in which, and purpose for which, the Trustees commissioned TRAC to carry out that R&D survey is provided in the witness statement of Schroders' Head of Asset Management, Rebecca Gates MRICS. Ms Gates explains that, although "negotiations had stalled", the Trustees were still open to a settlement and had been considering, with Schroders, how to move things forward.
"This was because we knew that it would be much more expensive and take longer to have to change contractor, and because it makes little sense to completely write off a settlement where we had already been trying (in a stop-start way) for most of 2022 and there had at least been some progress in the last quarter of the year. In fact, [TEXT REDACTED] we had been considering how to move things forward. One of the ways in which we tried to do this, was by considering progressing the R&D Surveys [TEXT REDACTED]."
- [TEXT REDACTED]
- The balance of the R&D surveys (to the risers, this time, following Briggs' confirmation of consent to access) was then instructed in January 2023. This was in parallel to operating contractual machinery (non-completion notices, and LAD notices). As Ms Gates has explained: "We did this knowing that the Defendant had made such surveys, commissioned by us, a pre-condition of recommencement and settlement. At that time, although it looked less likely than in October 2022, we still thought that a settlement might be reached."
- TRAC's Survey Reports were then provided piecemeal. It appears that the TRAC began surveying the riser floors on around 23 January 2023 and carried out the main bulk of the survey work before the end of that month, but that the Survey Reports were provided on various dates in February and March 2023. The example Survey Report exhibited to Mr Salter's witness statement states that the survey on which it reports was carried out between 26 January and 7 February 2023, and that the report was issued on 28 February 2023.
Assessment of the bases on which the Trustees contend that the Survey Reports are covered by WPP
- On behalf of the Trustees, Mr Taczalski advanced two bases on which the Survey Reports were said to be covered by WPP. His first basis was that the Survey Reports evidence the content of the WP negotiations between the parties. But that is an asserted basis that I, without hesitation, reject: it is simply not made out as a matter of fact.
- I do so notwithstanding my acceptance that: (a) as Mr Taczalski correctly observed, the issue as to which party to the Contract was contractually responsible for obtaining an R&D survey of the risers was one of the disputed issues in the parties' dispute; and, therefore, (b) the Trustees' commissioning of the R&D survey from TRAC in January 2023 could be regarded as a kind of 'concession'. Those matters plainly do not themselves suffice to show that revealing the fact that the Trustees ultimately chose to commission the R&D survey would amount to revealing the content of the WP negotiations. After all, it remains open to any party to a dispute to unilaterally do something, such as commissioning a report, which the parties have both recognised needs to be done but could not agree about whose responsibility it was to do it. Therefore, the fact that a party has done that thing, thereby making a practical 'concession' (without accepting that it was contractually its responsibility to have done it) does not itself reveal [whether any such] 'concession' […] had previously been proffered in a WP negotiation.
- Indeed, as the above quotations from the witness evidence filed on behalf of the Trustees bear out, there were good reasons for a party in the position of the Trustees to have chosen, in January 2023, to proceed with commissioning the R&D survey, even if the parties had not reached any agreement providing for this to be done as part of a mutual dispute resolution mechanism. Some of those reasons relate to promoting (further) negotiations potentially leading to settlement. For the following reasons, bringing into existence reports from such a survey could have assisted the Trustees in restarting negotiations with, and potentially reaching an agreed resolution with, Briggs:
i) The Trustees knew that Briggs' position was that responsibility to commission such a survey lay with the Trustees. If the Trustees showed they had now obtained such a survey, this pragmatic and constructive unilateral concession by them could have fostered a positive environment for constructive negotiations.
ii) The information provided by the survey reports would have assisted the parties in pragmatically focussing their negotiations on how to meet the costs of the ACM removal works that in fact needed to be done, rather than trying to protect their respective positions against a 'known unknown'. In other words, the Trustees might reasonably have thought that it would be more fruitful to negotiate with respect to a practical burden or problem once the approximate extent and costs of dealing with that problem were better known by the negotiating parties.
iii) TRAC would, having carried out the R&D survey, have been better placed to provide helpful advice to the Trustees, going forward, to support them in seeking to resolve the dispute. [TEXT REDACTED]
- [TEXT REDACTED] Accordingly, there is, in my judgment, simply no realistic basis for Mr Taczalski's submission that, if the trial judge were shown the R&D Surveys, this would effectively reveal to him the content of the parties' WP 2022 Negotiations. It would not. (I have not been shown any text within the Survey Reports which refers to any of the content of those negotiations, and it seems unlikely that they contain any such references. But if they do, then those references should be redacted from any versions of the reports placed before the trial judge.)
- I note that, given these points, it is surprising that the Trustees are apparently so concerned to prevent Briggs from relying at trial even on the mere fact that the Trustees commissioned their own R&D survey in January 2023. It is hardly surprising that, after works had been on hold for over a year, the Trustees were pragmatically looking for any ways to move matters on, including by commissioning an R&D survey so as to better understand the extent to which ACM was present in and around the risers. The trial of this claim is to take place before an experienced TCC Judge. He will have no difficulty in understanding that the fact that the Trustees commissioned an R&D survey in January 2023 is not evidence pointing away from a conclusion that contractual responsibility for commissioning an R&D survey was assigned by the Contract to Briggs. The true construction of the Contract could not properly be determined by reference to the Trustees' unilateral choices made over 2 years after the Contract was formed.
- Briggs' Counsel, Mr Frampton, told me that the purposes for which he might wish to rely on the Survey Reports at the trial were not limited to showing that the Trustees commissioned the R&D survey. There were, he said, specific elements of the contents of the Survey Reports on which Briggs might wish to rely. For example, information in the Survey Reports about the physical condition of the riser floors could potentially be relevant to Briggs' case that it was justified in suspending work by reason of issues impeding the carrying out of the works under safe conditions. This illustrates that there may be material within the Survey Reports that is relevant to issues to be adjudicated upon at the trial. It will be for the trial judge to determine whether the content of the Survey Reports is relevant to any such issue and, if so, what (if any) weight to attach to that material.
- The second basis Mr Taczalski advanced for finding the Survey Reports to be covered by WPP was that (to quote from his skeleton argument):
"… the TRAC R&D Surveys are in a materially identical position to the report in Rabin v Mendoza where there was an understanding in the course of without prejudice negotiations, and the report was "obtained in pursuance of that understanding". So too were the TRAC R&D Surveys obtained."
- I reject that submission, again because it is not made out on the facts. A shown by the factual chronology set out above at paragraphs 22-37, whilst the parties discussed potentially agreeing a set out measures which would have included the Trustees commissioning TRAC to carry out an R&D survey of the risers, that discussion never crystallised into an agreement or mutual understanding (whether amounting to a legally binding contract or not). The reality of what happened was that in January 2023, after the negotiations had effectively petered out, the Trustees unilaterally decided to proceed with commissioning the R&D survey anyway, doing so without relying on Briggs to provide a specification for that survey. This may well have been a commendable thing for the Trustees to have done with a view to restarting the negotiations and making progress. But it was not something that was done pursuant to – i.e. in implementation of – an agreement or mutual understanding between the parties as to steps that would be taken effectively as part of a mutually agreed mechanism for seeking to resolve the dispute. Mr Taczalski's attempt to draw a direct analogy with the factual situation in Rabin (a case in which the parties had come to an agreement or understanding which necessitated the obtaining of a surveyor's report) is therefore inapposite.
- I am also satisfied that this is not a case in which the court should expand the ambit of WPP in order to provide for a set of factual circumstances in which the application of WPP would supposedly be justified on policy grounds. The rule has never protected parties' communications with third parties merely because those communications were carried out for the purpose of promoting, or 'preparing the ground' for, settlement negotiations that the party was hoping to start, restart or re-enliven. That is so even though (as I accept) extending WPP to such communications could potentially reduce an impediment to parties' efforts to settle their disputes and could therefore make some contribution to furthering the policy underlying the rule.
- In my judgment, the common law has made a deliberate choice not to extend WPP to such communications; and for good reason. Extending WPP to such communications could have the effect of preventing trial judges from seeing a party's communications with a third party – or, indeed, from seeing a corporate party's internal communications – which were directed at investigating an extant dispute and considering potential options for settling or otherwise dealing with it, but which do not meet the criteria for being protected by LPP. This would deprive trial judges of seeing communications that might be highly relevant and informative for deciding the disputed factual issues in the proceedings. In other words, the policy of promoting efforts to settle disputes [is] outweighed by the competing imperative to enable cases to be decided justly based on all the relevant evidence.
- Further, such an extension of the WPP rule's ambit would tend to require courts determining claims to WPP to consider evidence as to a party's subjective purpose for the communication in respect of which WPP has been claimed. This would be contrary to the principle that the question of whether a communication was covered by WPP is to be determined objectively: Sang Kook Suh v Mace (UK) Ltd [2016] EWCA Civ 4, at [20]. The problem is illustrated by Ms Gates' witness statement, which sets out her evidence as to why the Trustees chose to proceed with instructing TRAC to carry out the R&D survey in January 2023, and then ends by observing that Briggs is in no position to gainsay evidence as to why the Trustees made that choice. In my judgment, her latter observation illustrates why applying WPP to communications taking account of a party's evidence as to its subjective purpose could lead to unfairness. Simply put, it would often not be practically possible for the other party to meaningfully verify or challenge the first party's claimed purpose.
If the Survey Reports are covered by WPP and therefore cannot be relied upon by Briggs at trial, are the Trustees entitled to withhold (i) disclosure, and/or (ii) inspection, of those reports?
- Given that WPP is a rule of admissibility of evidence, it is, I think, arguable that it does not displace a party's duties to provide disclosure and inspection of documents, even if WPP would prevent those documents then being relied upon in the trial. The courts have, however, sometimes upheld parties' refusals to provide inspection of documents covered by WPP to a party that has not previously seen them: see, e.g., Sheeran v Chokri [2022] EWHC 187 (Ch) at [33]. The reason may be simply that requiring inspection in those circumstances would be disproportionate and unfair in circumstances where the party receiving access to the documents would anyway not be able to deploy them at the trial.
- In view of my above conclusion that the Survey Reports are not covered by WPP, it is not necessary for me to answer this question in order to determine the Application. I therefore refrain from expressing views on it.
If the Survey Reports are not covered by WPP, do the circumstances by which Briggs received, and then chose to access the file containing, the Survey Reports have the consequence that Briggs should be prevented from relying on them at the trial?
- The circumstances in which Briggs has obtained the Survey Reports are unusual.
- Disclosure was exchanged on Friday 28 June 2024. But the Trustees' List of Documents did not include the Survey Reports.
- On the next working day (Monday 1 July 2024), the Trustees' solicitors ("SH"), sent Briggs' solicitors ("HK") a letter headed "WITHOUT PREJUDICE". The letter stated as follows:
"[1] We refer to the Defendant's Disclosure Requests at Annex 2 to the Order of the Court dated 5 April 2024.
[2] Request 2 seeks disclosure of "Documents showing whether and when the Trustee carried out further R&D survey(s) after 8 December 2021 and a copy of any such survey(s)".
[3] All documents relevant to Request 2 are privileged, and pursuant to CPR 31.19 the Claimants are entitled to and do withhold these documents from inspection.
[4] Notwithstanding the above, as the Defendant has expressly requested disclosure of these documents, in the interests of transparency, the Claimants are willing to provide access to these documents to the Defendant subject to the following conditions:
[4.1] these documents are provided on a strictly without prejudice basis and without any waiver of privilege; and
[4.2] the Defendant agrees that these documents will not be used or relied upon in any way in these Proceedings.
[5] Copies of these documents can be accessed at the following link: [electronic link and password].
[6] Copies of these documents can be accessed at the following link: [electronic link and password set out].
[7] For the avoidance of doubt, by accessing the link above, the Defendant confirms it agrees with and will abide by the terms at paragraph 4 above."
- I pause to make the following observations about SH's letter:
i) It indicated, at least impliedly, the nature of the documents that were accessible via the electronic link. They were documents relating to R&D surveys which fell within the scope of Briggs' Disclosure Request #2.
ii) It asserted that the documents were "privileged" but neither identified the species of privilege nor the reasons why the documents were said to be covered by that privilege.
iii) It appears, on its face, to be directed at setting up an 'offer and acceptance' scenario whereby the Trustees were offering to provide the Survey Reports that were said to be "privileged" on condition that Briggs agreed not to use those documents at the trial. Briggs could 'accept' that offer by the act of its solicitors clicking on the electronic link so as to access the documents.
- On 3 July 2024, HK responded by way of a letter headed "WITHOUT PREJUDICE". The letter stated that, given the lack of explanation as to what the documents were or how they were privileged, Briggs could not agree to the Trustees' conditions. The letter further stated that, although the electronic link had not yet been accessed, HK intended to access it and that Briggs would make its own determination as to whether the documents were privileged. If Briggs then found that the documents were indeed privileged, then "of course" it would "not be entitled to use or rely upon the same in these proceedings". "However, to the extent any documents are not privileged, [Briggs would] … treat them as though they were disclosed on an open basis."
- After sending that letter, Briggs then accessed the documents.
- SH replied on 4 July 2024, reiterating the conditions stated in their 1 July letter and adding: "the Claimants maintain that these documents are privileged, and it is not open to the Defendant to seek to make its own assessment as to whether such documents can be relied upon in these Proceedings."
- On 8 July 2024, HK sent a letter to SH explaining that they had now accessed the documents, which were found to be 60 survey reports, each of which stated that its purpose was to identify asbestos and whether remedial works were required. The letter further stated that Briggs would be treating the documents as open and relying on them at trial.
- SH responded on 7 August 2024, setting out the Trustees' position that the Survey Reports were covered by WPP. On 16 August 2024, HK explained why Briggs disagreed. On 13 September 2024 SH sent HK a draft of the Application. The Application was issued on 16 September 2024.
- Mr Taczalski submitted, on behalf of the Trustees, that the consequence of HK having accessed the Survey Reports in the circumstances described above is that, regardless of whether those documents are properly covered by WPP, Briggs cannot rely on them at trial. The way he put the argument is conveniently encapsulated in the following paragraph of his skeleton argument:
"Briggs accessed the documents and is bound by the terms on which they were offered. The documents were provided under an express without prejudice cloak, and there can be no doubt that they were only provided on a without prejudice basis. They are therefore protected by the rule, and its foundation in the express agreement of the parties …."
- In my view, a difficulty with that argument is that it focuses on the circumstances in which Briggs received the Survey Reports, without considering the wider context. That wider context includes the CMC Order, by which the Trustees were required to provide disclosure and inspection of documents falling within Briggs' Disclosure Request #2. Insofar as the Survey Reports were caught by the terms of that Disclosure Request, and assuming (as I have found) that those documents were not covered by WPP, Briggs was entitled to be provided with them. It would therefore be wrong for me to approach my consideration of this case as though it were one in which a party had been able to obtain the documents only because they were voluntarily provided in the course of, and for the purposes of, settlement negotiations taking place on a WP basis. If the Survey Reports were not covered by WPP at the times when they were communicated by TRAC to the Trustees, then they could not subsequently acquire WPP status, in the present proceedings, merely by reason of their having been (inappropriately) provided to Briggs only on WP terms or under cover of a letter marked "WITHOUT PREJUDICE".
- The real issue, it seems to me, is whether, as a result of HK having clicked on the link, Briggs: (a) agreed to the conditions set out in SH's 1 July 2024 letter; and, in consequence, (b) became bound by some kind of contract or estoppel which prevents it from relying on the Survey Reports at trial, even if those reports were never properly covered by WPP. For considering that issue, I need to start by identifying the relevant terms of the alleged 'agreement'.
- There are, in my view (not, I note in fairness to the Trustees, a construct they advanced), two potential interpretations of the proposed terms set out in SH's 1 July letter, to which Briggs was being invited to agree by clicking on the link:
i) The first potential interpretation (the "First Interpretation") is that, if (and only if) the documents accessible via the link were properly privileged, then Briggs: (a) acknowledged that the Trustees' provision of those documents was not intended to waive that privilege (as plainly they did not, given the terms of the letter); and (b) would not seek to rely on those documents at trial. If this interpretation is the right one, then the proposed 'agreement' added nothing of substance to the legal position that would anyway have obtained absent that agreement. Further, the agreement would have no practical consequence in circumstances where (as I have found) the documents are not privileged.
ii) The second potential interpretation (the "Second Interpretation") is that Briggs would, by its agreement, irrevocably forgo its ability to seek to rely on the provided documents even if they were not properly covered by privilege.
- The First Interpretation seems to me the more likely to be the correct one, having regard to the relevant commercial context, i.e. as representing terms that might reasonably be proposed, and potentially accepted, by parties to litigation communicating with one another via their respective solicitors. It is not uncommon, for example, for a party to litigation to agree to provide the other party with copies of documents that the first party does not accept it is required to provide, doing so based on an understanding that it is not thereby waiving any privilege or accepting that the documents are required to be disclosed or may be relied upon at trial. This can be a pragmatic approach for resolving interlocutory disputes as to whether a party has complied with its disclosure obligations and whether a particular document in respect of which privilege has been claimed is indeed privileged. If the party receiving the document pursuant to the agreement considers that it is one that ought to have been disclosed and which is relevant to a substantive disputed issue in the proceedings and not privileged, then it can still seek to rely on that document at trial. If the parties, after they have both had sight of the document, still cannot agree whether it is one that may properly be relied upon at trial, then the court can be asked to decide that matter.
- The Second Interpretation, in contrast, is obviously 'uncommercial', in the sense that no reasonable solicitors in the position of HK would have advised their client to agree to it. If that interpretation were correct, then Briggs was being asked to agree that it would not rely on certain documents before it had viewed them or even received an explanation of why those documents were said to be "privileged". The agreement would be one by which the party receiving the documents agreed, prior to viewing them and knowing what they were, that it would not seek to rely on them at trial even if they turned out to be of very high relevance to the proceedings and [were] clearly not privileged. Imagine, for example, that a party receiving a letter in the same terms as SH's 1 July letter then clicked on the link and found that, behind it, lay a 'smoking gun' document that should have been disclosed as part of litigation disclosure and which showed that the providing party's case was fundamentally wrong. On the Second Interpretation, the providing party would have played a brilliant trick. As soon as the receiving party clicked on the link, the snare would have pulled tight and that party (and, by extension, the trial judge) would be deprived of the critical document, potentially producing an unjust result at trial.
- A further problem with the Second Interpretation is that it is unclear what valuable consideration would be being provided by a party offering to the other party access to a set of documents upon certain conditions, in circumstances where those documents were ones that the first party was already required to provide by way of court-ordered disclosure and inspection.
- It appears, however, that HK may have understood SH's letter to have a meaning as per the Second Interpretation, given the terms in which HK, by their letter of 3 July, objected to the conditions proposed in SH's letter.
- If the Second Interpretation were correct, and if Briggs had agreed to access the Survey Reports on those terms, and if the Trustees had then sought to hold Briggs to those terms, then I would, in view of the points I have made at paragraph 93 above, have been minded to refuse, for reasons of public policy, to enforce that agreement (or estoppel).
- On the facts, however, Briggs did not agree to access the documents on the terms set out in SH's 1 July letter. Rather, Briggs expressly rejected those terms but then proceeded to take advantage of its solicitors' knowledge of the electronic link so as to access the documents anyway. In any event, Mr Taczalski has disclaimed any reliance on the Second Interpretation. The Trustees' position is simply that, in circumstances where they had provided the Survey Reports to Briggs only subject to a condition that they would not be relied upon at trial, Briggs has not received disclosure of the Survey Reports and has no right to rely on them. That is because, insofar as Briggs already has access to the Survey Reports, this was as a result of HK clicking on the electronic link provided in SH's 1 July letter, which was headed "WITHOUT PREJUDICE" and offered access to the documents only on the conditions set out in that letter. If Briggs had been [of] the view that the Trustees had not complied with their disclosure obligations, then Briggs could have applied for specific disclosure, but it has not done so.
- The conduct of HK in refusing to accept the conditions set out in SH's letter, but then proceeding to access the link, was, in my view, not the appropriate way of responding to that letter. I can understand that HK may, on behalf of their client, have regarded SH's 1 July letter as setting up a position that was unbalanced and unfair (as it was, if its meaning was as per the Second Interpretation, as HK may have thought was SH's intention). But the appropriate response would have been for HK to write to SH pointing out the unfairness and seeking an explanation as to what the documents were and the basis on which they were said to be privileged. Absent an acceptable reply from SH, Briggs could have brought the matter before the Court by way of an application. In my view, the overall course of events is one in which both parties' conduct fell short of good litigation behaviour.
- The question for me, now, is whether I should grant the Trustees any relief in relation to this? Should I, for example, enjoin Briggs from relying on the Survey Reports, and/or order that the Survey Reports shall be inadmissible at the trial, by reason of Briggs having accessed those documents contrary to the terms on which those documents had been proffered by the Trustees?
- In my judgment, it would be inappropriate for me to grant the Trustees any such relief. That is so for this basic reason: many (probably the majority, and perhaps all) of the Survey Reports are documents that the Trustees ought to have provided to Briggs, by way of disclosure and inspection on 28 June 2024. This was disclosure and inspection that the Trustees were required by the CMC Order to provide. Even if Briggs should not have accessed the link in the circumstances that they did, the practical result has been no more than that Briggs obtained access to documents to which it should have been provided with access anyway. It would, in my judgment, be unreasonable and wrong for me to 'punish' Briggs by prohibiting it from relying on documents to which it was entitled to have access (albeit through a different route), in circumstances where the cause of Briggs not having received that access was a failure on the part of the Trustees to comply with their disclosure obligations.
- This result might perhaps be regarded as an example of an application of the equitable principle that "equity treats as done that which ought to have been done". In any event, it is a result that accords with what is fair and just in the circumstances of this case. In my judgment, it is not reasonable for the Trustees to seek an order restraining Briggs from relying at trial on documents which were not properly subject to WPP. The question as to whether the Survey Reports were covered by WPP is an issue at the heart of the Application and which has been debated by the parties in their evidence and submissions relating to it. The Trustees should have accepted that, if the Survey Reports were found not to be covered by WPP, then that should effectively be the end of the matter, as the onus would then be on the Trustees to make disclosure and inspection of the Survey Reports by way of belated compliance with the CMC Order.
Conclusion
- For the reasons I have given, I dismiss the Application. In my judgment, the Trustees were required to provide disclosure and inspection of the Survey Reports pursuant to the disclosure order I made at the CMC and should have done so. In any event, insofar as any of the Survey Reports were not caught by the terms of that order, I am satisfied that it is fair and just to order specific disclosure of them (and of any other reports from the R&D survey which Briggs has not already received), given that they were all reports relating to essentially one overall R&D survey. Accordingly, I will not bar Briggs from relying on the Survey Reports at trial. It will, of course, be for the trial judge to determine whether and how those Survey Reports are relevant to the issues he will be deciding, and what (if any) weight to attach to their contents.
