Court of Appeal confirms fraud exception to without prejudice (WP) rule extends to cases where a party wishes to rely on WP statements to rebut allegations that a settlement agreement is invalid

The Court of Appeal has upheld a High Court judgment which found that defendants could rely on WP statements made in a mediation position paper to rebut the claimants’ allegations that a settlement agreement apparently concluded should be set aside for fraud: Berkeley Square Holdings v Lancer Property Asset Management Ltd [2021] EWCA Civ 551. … Read more

Commercial litigation podcast series – Episode 6: General update

In this sixth episode of our series of commercial litigation update podcasts, we briefly outline the impact of Brexit on disputes and dispute resolution clauses, focusing on practical points for commercial parties. We also look at some developments on privilege and funding, as well as an update on witness evidence reform, and finally we consider … Read more

Court of Appeal decision shows “unambiguous impropriety” exception to without prejudice rule will be applied only in clear cases

The Court of Appeal has held that the narrow “unambiguous impropriety” exception to without prejudice privilege, which permits courts to admit evidence of settlement discussions where a party has abused the protection of the privilege, is to be applied only where there is clear evidence of impropriety: Motorola Solutions Inc v Hytera Communications Corp Ltd … Read more

Iniquity exception to privilege applied where documents were created by solicitor in connection with breach of director’s duties

The High Court has granted an application for the production and disclosure of documents, previously withheld by the defendants during proceedings, on the ground that the “iniquity exception” to legal professional privilege (“LPP”) applied. As such, the defendants were unable to rely on LPP and were required to disclose the documents to the claimant: Barrowfen … Read more

Commercial litigation podcast series – Episode 4: General update

In this fourth episode of our series of commercial litigation update podcasts, we look at a variety of cases and developments, including an update on the disclosure pilot and proposals in relation to witness statements. We also look at recent cases on privilege, witness evidence, access to court documents, claim notices and freezing injunctions. This … Read more