The Court of Appeal has held that the claimant was not entitled to withhold from inspection communications that had been incorporated into a settlement agreement with one of five defendants. That was despite the fact that, at the time they were made, those communications had been protected by the without prejudice rule, and potentially also … Read more
The Court of Appeal has held that an email containing advice from an in-house lawyer on redundancy was not, as the EAT had found, a cloak for dismissal on the basis of discrimination: Curless v Shell International Limited [2019] EWCA Civ 1710. The Court of Appeal agreed with the Employment Tribunal that the advice given … Read more
The Court of Appeal has confirmed that the documents of a dissolved company remain privileged, regardless of whether there is anyone who can assert the company’s privilege: Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600. The decision establishes that, once a privileged communication comes into existence, that privilege is absolute and remains intact unless … Read more
In a recent decision, the High Court has distinguished between correspondence which is expressly stated to be “without prejudice” and that which is only impliedly so, finding that the latter category (but not the former) can be taken into account on questions of costs: Sternberg Reed Solicitors v Harrison [2019] EWHC 2065 (Ch). There is … Read more
The Employment Appeal Tribunal (EAT) has held that an employer waived privilege in redacted parts of a draft dismissal letter setting out its lawyer’s comments, as a result of the employer’s decision to rely on other privileged material relating to the claimant’s dismissal: Kasongo v Humanscale UK Ltd [2019] UKEAT 0129_19_0909. It is well established … Read more
Our Asia Pacific Guide to Privilege has recently been launched, including a new chapter on England and Wales and a question added to each of the other chapters comparing the position on privilege to the English law position. Compiled by our network of Herbert Smith Freehills lawyers and trusted local counsel, the updated Guide takes … Read more
Legal professional privilege is recognised as a fundamental human right, which serves an important public interest in allowing parties to take legal advice, and prepare for litigation, without fear that what they say may later be disclosed and used against them. But the English law of privilege has developed in ways that many clients and … Read more
The High Court has confirmed that the Disclosure Pilot operating in the Business and Property Courts since 1 January 2019 applies to all proceedings currently on foot in those courts (apart from those specifically excluded), regardless of whether orders for disclosure were made prior to that date. Accordingly, any applications for further orders regarding disclosure … Read more
The High Court has held that correspondence marked “without prejudice save as to costs” and which described the conduct of prior “without prejudice” (“WP”) negotiations (including a mediation and subsequent discussions) was admissible in an application for costs against the claimant’s lawyers: Willers v Joyce & Ors [2019] EWHC 937 (Ch). The court accepted that … Read more
