Briggs & Ors v Clay & Ors [2019] EWHC 102 (Ch) (25 February 2019)

Briggs & Ors v Clay & Ors [2019] EWHC 102 (Ch) (25 February 2019)

The without prejudice communications between the Claimants and Aon are inadmissible in these proceedings. The exceptions to the rule, including implied waiver and the Muller exception, do not apply. The communications relate directly to the subject matter of the claim and are not wholly unconnected collateral facts. Waiver cannot be unilateral, and public policy requires strict limitation of exceptions to the rule.

Citation
[2019] EWHC 102 (Ch)
Parties
Claimants: Christopher James Briggs and Others; First Defendant: Alexander Clay; Second Defendant: Aon Consulting Financial Services Limited; Third Defendant: Aon Consulting Limited; Fourth Defendant: Aon UK Limited; Fifth Defendant: Gowling WLG (UK) LLP; Sixth Defendant: Paul Newman QC
Jurisdiction
England and Wales
Judgment Date
25 February 2019
Procedural Posture
Professional Negligence Claim / Interlocutory Application Regarding Admissibility of Without Prejudice Communications
Outcome
Application granted; without prejudice communications are inadmissible.
Legal Topics
Without Prejudice Rule, Privilege, Mitigation of Loss, Chain of Causation, Contribution Claims
Civil Procedure Professional Negligence Evidence Without Prejudice Rule Privilege Mitigation of Loss Chain of Causation Contribution Claims

Case Brief

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Parties

Christopher James Briggs and Others

Claimants

Alexander Clay

First Defendant

Aon Consulting Financial Services Limited

Second Defendant

Aon Consulting Limited

Third Defendant

Aon UK Limited

Fourth Defendant

Gowling WLG (UK) LLP

Fifth Defendant

Paul Newman QC

Sixth Defendant

Procedural Posture

Professional Negligence Claim / Interlocutory Application Regarding Admissibility of Without Prejudice Communications

Legal Issues

  1. 1 Whether without prejudice communications between Claimants and Aon are admissible in evidence in the proceedings
  2. 2 Whether exceptions to the without prejudice rule apply, including implied waiver and the Muller exception
  3. 3 Whether the content of without prejudice negotiations can be used to prove collateral facts or the extent of involvement of parties

Ratio Decidendi

The without prejudice communications between the Claimants and Aon are inadmissible in these proceedings. The exceptions to the rule, including implied waiver and the Muller exception, do not apply. The communications relate directly to the subject matter of the claim and are not wholly unconnected collateral facts. Waiver cannot be unilateral, and public policy requires strict limitation of exceptions to the rule.

Court Disposition

Application granted; without prejudice communications are inadmissible.

Orders

  • Lawyer Defendants to serve replacement versions of their Defences omitting without prejudice content.
  • Declaration that without prejudice content is not to be referred to in evidence or submissions at trial.