Avonwick Holdings Ltd v Webinvest Ltd & Anor [2014] EWCA Civ 1436 (17 October 2014)

Avonwick Holdings Ltd v Webinvest Ltd & Anor [2014] EWCA Civ 1436 (17 October 2014)

'Without prejudice' privilege did not attach to the correspondence because there was no dispute or issue in existence at the time; the parties did not enter into a binding agreement to extend privilege; and the use of 'subject to contract' indicated no legal consequences were intended. Privilege over settlement negotiations with a third party was not waived as it is a joint privilege and there was no evidence of consent from the third party.

Citation
[2014] EWCA Civ 1436
Parties
Claimant/respondent: Avonwick Holdings Limited; Defendant/appellant: Webinvest Limited; Defendant/appellant: Mr Mikhail Shlosberg
Jurisdiction
England and Wales
Judgment Date
17 October 2014
Procedural Posture
Civil Appeal / Appeal From Chancery Division to Court of Appeal
Outcome
Appeal against the order of David Richards J dismissed; appeal against the order of Her Honour Judge Walden-Smith allowed to the limited extent regarding privilege over third-party settlement negotiations.
Legal Topics
Without Prejudice Privilege, Disclosure of Documents, Settlement Negotiations, Contractual Interpretation
Civil Procedure Evidence Contract Law Without Prejudice Privilege Disclosure of Documents Settlement Negotiations Contractual Interpretation

Case Brief

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Parties

Avonwick Holdings Limited

Claimant/respondent

Webinvest Limited

Defendant/appellant

Mr Mikhail Shlosberg

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Chancery Division to Court of Appeal

Legal Issues

  1. 1 Whether 'without prejudice' privilege attaches to communications absent an extant dispute
  2. 2 Whether parties can contractually extend 'without prejudice' privilege
  3. 3 Whether privilege over settlement negotiations with a third party was waived

Ratio Decidendi

'Without prejudice' privilege did not attach to the correspondence because there was no dispute or issue in existence at the time; the parties did not enter into a binding agreement to extend privilege; and the use of 'subject to contract' indicated no legal consequences were intended. Privilege over settlement negotiations with a third party was not waived as it is a joint privilege and there was no evidence of consent from the third party.

Court Disposition

Appeal against the order of David Richards J dismissed; appeal against the order of Her Honour Judge Walden-Smith allowed to the limited extent regarding privilege over third-party settlement negotiations.

Orders

  • Correspondence marked 'without prejudice' is admissible in evidence as no dispute existed at the time.
  • Disclosure of negotiations leading to settlement with the third party is not required as privilege was not waived.