In Morris v Williams [2025] EWHC 218 (KB), District Judge Dodsworth (sitting as a judge of the High Court) considered the ‘unambiguous impropriety’ exception to the without prejudice rule in respect of a letter which had been written by the claimant’s solicitors and marked ‘Without prejudice save as to costs’ (the letter).
The law
Without prejudice correspondence is inadmissible, as Lord Griffiths explained in the seminal Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 case when he said: ‘The “without prejudice” rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish.’ (see also Oliver LJ in Cutts v Head [1984] Ch. 290 at [306]).
The without prejudice rule is not absolute, and one of the exceptions to the rule relates to situations where to exclude material marked as without prejudice would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’, as explained by Robert Walker LJ in Unilever PLC v The Procter & Gamble Company [2000] 1 WLR 2436. However, in Foster v Friedland and Fazil-Alizadeh v Nikbin 1993 CAT 205, the court warned that the exception should be applied only in the clearest cases of abuse of the rule (see also Males LJ in Motorola Solutions Inc & Others v Hytera Communications Corporation Ltd & Another [2021] EWCA Civ 11 and Lord Hope in Ofulue v Bossert [2009] UKHL 16).
Background and parties’ arguments
The claimant brought a claim for personal injury against the defendant. In its amended defence, the defendant alleged that the claimant had been fundamentally dishonest in exaggerating his injuries. The defendant made an application for an order compelling the claimant to respond to a Part 18 request and an order that the letter may be adduced as evidence.
The defendant argued that the letter contained admissions by the claimant which supported the allegations that the claimant was fundamentally dishonest. The defendant relied on the unambiguous impropriety exception to the without prejudice rule. The claimant argued that the letter, properly analysed, does not contain any admission of fundamental dishonesty and that, even if it did, it was not clear enough to fall within the unambiguous impropriety exception.
Decision
The judge noted that the letter would normally be privileged given that it had been marked ‘Without prejudice save as to costs’. Before considering whether the unambiguous impropriety exception applied, the judge considered whether an admission had been made. He noted that the letter had been carefully written by experienced solicitors and found that it contained a clear admission that the claimant had been fundamentally dishonest in the way he had put forward his case. The judge then considered whether the letter fell within the unambiguous impropriety exception. Finding that the letter fell within the exception, the judge held: ‘I have found the letter to be a clear admission of fundamental dishonesty on the part of the claimant. That goes well beyond, say, an acceptance that the claimant has over-egged his injuries, or their effects on his day-to-day activities, or a concession that some aspects of his case may be difficult to prove. All of those might be things said in usual exchanges in the context of without prejudice negotiations and which would fall to be protected by the without prejudice rule as they do not demonstrate unambiguous impropriety. Here the line has been crossed.’ The judge explained that this was a case ‘where the public policy arguments in favour of litigating disputes with full disclosure trump the policy argument in allowing parties to speak candidly and with protection of the contents of the discussions, to encourage settlements’.
The decision in Morris v Williams is a helpful reminder of the scope and application of the unambiguous impropriety exception to the without prejudice rule. As the judge’s decision and the authorities make clear, while the public policy underpinning the without prejudice rule is vital for fostering candid settlement negotiations, it is not absolute. Where correspondence crosses the line into unambiguous impropriety – such as clear admissions of fundamental dishonesty – the need for full disclosure and justice outweighs the protection ordinarily afforded by the rule.
This case reinforces the importance of careful drafting of without prejudice communications and highlights the limited but critical role of the unambiguous impropriety exception in ensuring the parties litigate with full disclosure.
Masood Ahmed is an associate professor of law at the University of Leicester and a member of the Law Society’s Dispute Resolution Committee. Lal Akhter is a fellow of the Chartered Institute of Arbitrators, an unregistered barrister and an alternative dispute resolution specialist at Docket Live, Leicester
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