Protecting the without prejudice rule

The English Court of Appeal has avoided a potentially dangerous erosion of the without prejudice rule. Richard Roberts, Aidan Southall, and Georgia Carr of Potter Clarkson report.

In its decision of January 11, 2021, the English Court of Appeal set aside a freezing injunction imposed by the High Court in the context of an ongoing trade secrets dispute in the US. Key to its ruling was an analysis of the “unambiguous impropriety” exception to without prejudice (WP) privilege.

Emphasising the limited scope of that exception, this judgment preserves the privilege in WP communications, emphasising the strong public interest in facilitating open and frank settlement discussions between litigants, with an aim to resolving disputes.

Background