Court of Appeal finds trustees in bankruptcy could not waive bankrupt’s privilege

In a recent judgment, the Court of Appeal has held that trustees in bankruptcy could not waive legal professional privilege of a bankrupt, even though (i) the trustees in bankruptcy were entitled to take possession of the documents in which the privileged information was contained and (ii) the Insolvency Act 1986 provides generally that trustees … Read more

Two High Court decisions illustrate broad application of without prejudice protection

In two recent cases, the courts have rejected attempts to introduce evidence of without prejudice (WP) communications. The decisions emphasise the important public policy role of the WP rule in encouraging settlement by ensuring parties can negotiate freely, without fear of concessions made during settlement negotiations being used against them in the course of litigation. … Read more

Court of Appeal finds settlement offer not subject to “without prejudice” protection as it amounted to an unambiguously improper threat

The Court of Appeal has recently considered the rarely invoked "unambiguous impropriety" exception to without prejudice ("WP") privilege: Ferster v Ferster [2016] EWCA Civ 717. Upholding the decision of Rose J at first instance, the Court of Appeal found that a settlement offer made on behalf of the claimants following an unsuccessful mediation constituted an … Read more

Article published on common interest privilege

Common interest privilege allows communications or documents that are already privileged to be shared with others who have a common interest in their subject matter without losing privilege. The practical significance of this concept is greatly reduced as a result of the principle of limited waiver under English law, which allows privileged material to be shared … Read more

Court of Appeal decision endorses broad view of without prejudice protection

The Court of Appeal has held that discussions between a defendant's solicitor and a claimant litigant in person were or ought to have been seen by both parties as "negotiations genuinely aimed at settlement" and therefore protected by the without prejudice rule. In doing so, the court overturned the High Court's decision, which it said took too narrow a … Read more

Herbert Smith Freehills Singapore hosts round table discussion on “Preserving privilege: practical issues in the context of disputes and investigations”

On Wednesday 13 January 2016, a cross section of our clients based in Singapore joined our Disputes and Corporate Crime & Investigations teams and Bankim Thanki QC, a leading commercial advocate and litigator who has practised extensively in the region and the editor of The Law of Privilege (Oxford), for a roundtable discussion on the … Read more