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Legal Minds

27 January 2017 / by / in

When “without prejudice” protection is lost

The case of Ferster v Ferster [2016] EWCA Civ 717 is a reminder that the “without prejudice” label is not inviolable. The protection can be lost if threats are made which are “unambiguously improper” even if falling short of blackmail. The issue arose in the context of a mediation where improper and unwarranted threats were made that unless a higher offer was forthcoming a company would bring criminal and contempt proceedings against the other party. The rule is that one party may be allowed to give evidence of what the other said or wrote within without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or (Hoffman LJ’s expression) “unambiguous impropriety”. When without prejudice is abused, “the veil imposed by public policy may have to be pulled aside” per Lord Griffiths Rush and Tomkins [1989] AC 1280.

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John specialises in commercial and civil fraud litigation. Admitted as a solicitor in 1983, John worked in private practice and in-house for a leading life assurance company before establishing Bivonas with Antony Brown in 1997. John has extensive experience in a wide range of courts and tribunals including the UK Supreme Court, the Court of Appeal and the Divisional Court. He has been involved in a number of important reported cases.