BNP Paribas Depositary Services Limited & Anor v Briggs & Forrester Engineering Services Limited

BNP Paribas Depositary Services Limited & Anor v Briggs & Forrester Engineering Services Limited

The survey reports were not covered by without prejudice privilege because they were commissioned unilaterally by the Claimants and not pursuant to a mutual agreement as part of the settlement process. The Defendant is not barred from relying on the reports at trial, as the Claimants were required to disclose them under the court's disclosure order. The manner in which the Defendant accessed the reports does not justify barring their use, as the Claimants' failure to comply with disclosure obligations was the root cause.

Parties
Claimant: BNP Paribas Depositary Services Limited; Claimant: BNP Paribas Depositary Services (Jersey) Limited; Defendant: Briggs & Forrester Engineering Services Limited
Jurisdiction
England and Wales
Judgment Date
26 March 2025
Procedural Posture
Interlocutory Application in Civil Proceedings (technology and Construction Court) / Ruling on Application to Bar Reliance on Documents at Trial
Outcome
Application dismissed
Legal Topics
Without Prejudice Privilege, Disclosure and Inspection of Documents, Admissibility of Evidence, Contractual Disputes, Settlement Negotiations
Civil Procedure Evidence Construction Law Without Prejudice Privilege Disclosure and Inspection of Documents Admissibility of Evidence Contractual Disputes Settlement Negotiations

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Parties

BNP Paribas Depositary Services Limited

Claimant

BNP Paribas Depositary Services (Jersey) Limited

Claimant

Briggs & Forrester Engineering Services Limited

Defendant

Procedural Posture

Interlocutory Application in Civil Proceedings (technology and Construction Court) / Ruling on Application to Bar Reliance on Documents at Trial

Legal Issues

  1. 1 Whether 'without prejudice privilege' (WPP) attaches to R&D survey reports commissioned unilaterally by one party and not shared during negotiations
  2. 2 Whether the defendant should be barred from relying on the survey reports at trial due to the manner of their provision and asserted privilege
  3. 3 Whether the claimants were entitled to withhold disclosure and inspection of the survey reports

Ratio Decidendi

The survey reports were not covered by without prejudice privilege because they were commissioned unilaterally by the Claimants and not pursuant to a mutual agreement as part of the settlement process. The Defendant is not barred from relying on the reports at trial, as the Claimants were required to disclose them under the court's disclosure order. The manner in which the Defendant accessed the reports does not justify barring their use, as the Claimants' failure to comply with disclosure obligations was the root cause.

Court Disposition

Application dismissed

Orders

  • The Defendant is not barred from relying on the R&D survey reports at trial.
  • The Claimants are required to provide disclosure and inspection of the survey reports pursuant to the disclosure order.