When is Without Prejudice Correspondence Admissible at Court?

This was the question before the High Court in the claim of Keith Morris v Williams Willaims [2025] EWHC 218 earlier this year.

The claim concerned a personal injury claim arising from a road traffic accident. The defendant had admitted negligence. He was however pursuing a fundamental dishonesty defence on the basis that the claimant had seriously exaggerated the effect and extent of his injuries. In this regard surveillance had been obtained of the claimant which it was alleged contradicted his presentation. In support of their arguments the defendant solicitors made an application to the court to adduce into evidence a letter from the claimant solicitors which had been marked without prejudice.

The court accepted that the starting point for any without prejudice correspondence is that it is inadmissible, based on a public policy of allowing litigants to settle their differences rather than having to litigate. As such it applies to exclude all negotiations genuinely aimed at settlement. The rule is not however absolute. There are exceptions and the court specifically considered that the situation where material marked as without prejudice would act as a clock for perjury, blackmail or other unambiguous impropriety as one. The defendant in this matter argued that the correspondence in question fell squarely into this category.

The letter in question from the claimant solicitors’ offered to settle the claim for a £20,000 payment to the defendant to cover an interim payment previously made and their costs, and to provide an admission of fundamental dishonesty in respect of some of the claim but only in a non—disclosure agreement, not disclosable to third parties. The correspondence was headed without prejudice – save as to costs, and was stated to be a Calderbank offer within the letter.

The court concluded that the correspondence contained a clear admission that the claimant had been fundamentally dishonest in the way he had presented his claim. It did fall within the unambiguous impropriety exception and as such could be admitted into evidence. There was a clear admission of fundamental dishonesty which went beyond an acceptance that the claimant had perhaps overegged his injuries or a concession that some parts of his claim may be difficult to prove. If the letter was excluded the Judge considered that there was more than a risk the claimant could perjure himself, and the certainty that the claimant’s pleaded claim was put forward on at least a partly false basis was sufficient to bring the exception in to play.

Forbes comment – The correspondence sent by the claimant solicitors in this matter was somewhat unusual and this particular issue ATTACHED may not arise regularly. The case is however a useful reminder that marking something without prejudice will not always guarantee a document is not disclosable and correspondence must be carefully considered before it is sent to ensure that there is nothing that could have critical repercussions if it was disclosed.