Interactive Technology Corporation Ltd v Ferster & Ors

Interactive Technology Corporation Ltd v Ferster & Ors

The email in question constitutes an unambiguous impropriety—an attempt at blackmail—by threatening committal and criminal proceedings unless the applicant agreed to pay an inflated price for shares. Such conduct falls squarely within the exception to without prejudice privilege, making the email admissible. The mediation agreement does not contain clear and unmistakable wording to override this public policy exception.

Parties
Applicant: Jonathan Ferster; Respondent: Stuart Ferster; Respondent: Warren Ferster; Respondent: Interactive Technology Corporation Ltd (ITC)
Jurisdiction
England and Wales
Judgment Date
21 December 2015
Procedural Posture
Company/unfair Prejudice Petition / Application to Amend Petition; Interlocutory Ruling on Admissibility of Evidence
Outcome
Application to amend petition allowed; email ruled admissible as evidence.
Legal Topics
Unfair Prejudice, Without Prejudice Privilege, Exceptions to Privilege, Blackmail Exception, Mediation Privilege, Amendment of Pleadings
Company Law Civil Procedure Evidence Unfair Prejudice Without Prejudice Privilege Exceptions to Privilege Blackmail Exception Mediation Privilege +1 more

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Parties

Jonathan Ferster

Applicant

Stuart Ferster

Respondent

Warren Ferster

Respondent

Interactive Technology Corporation Ltd (ITC)

Respondent

Procedural Posture

Company/unfair Prejudice Petition / Application to Amend Petition; Interlocutory Ruling on Admissibility of Evidence

Legal Issues

  1. 1 Whether an email sent by a mediator is admissible as evidence under the unambiguous impropriety exception to without prejudice privilege
  2. 2 Whether the mediation agreement extends privilege to exclude the email even if it involves unambiguous impropriety

Ratio Decidendi

The email in question constitutes an unambiguous impropriety—an attempt at blackmail—by threatening committal and criminal proceedings unless the applicant agreed to pay an inflated price for shares. Such conduct falls squarely within the exception to without prejudice privilege, making the email admissible. The mediation agreement does not contain clear and unmistakable wording to override this public policy exception.

Court Disposition

Application to amend petition allowed; email ruled admissible as evidence.

Orders

  • Amendment to petition permitted to include allegations based on the email.
  • Email of 29 April 2015 is admissible in evidence.