The Fact a Without Prejudice Offer Has Been Made: Admissible or Privileged from Disclosure?

It is trite law to state that the contents of without prejudice negotiations cannot be referred to openly. But what about the fact that such negotiations have taken place?

Perhaps surprisingly this question does not have a straightforward answer and does not appear ever to have been definitively answered in the context of financial remedy applications.

The foundational authority for the argument that reference to without prejudice negotiations – both content and fact – are inadmissible is usually said to be Rush & Tompkins Limited v Greater London Council and Another [1989] AC 1280 per Lord Griffiths at p1299 (emphasis added):

‘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 … The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.’

The argument is that the words ‘all negotiations’ cover the entire process and not just content and hence the fact alone is also inadmissible.

However authority for the principle that a court can be informed of the fact that ‘without prejudice’ correspondence has taken place can be found in the venerable authority of Walker v Wilshir (1889) 23 QBD 335 per Lindley LJ at p338:

‘No doubt there are cases where letters written without prejudice may be taken into consideration, as was done the other day in a case in which a question of laches was raised. The fact that such letters have been written and the dates at which they were written may be regarded, and in so doing the rule to which I have adverted would not be infringed. The facts may, I think, be given in evidence, but the offer made and the mode in which that offer was dealt with – the material matters, that is to say, of the letters – must not be looked at without consent.’

This is therefore authority for the principle that the fact that ‘without prejudice’ correspondence has taken place, and the specific dates on which letters were written, can be openly referred to and given in evidence. However whilst the existence and timing of the communications are admissible, the substantive contents remain strictly protected and cannot be disclosed to the court without the consent of both parties.

In Cutts v Head [1984] Ch 290 (a case which was principally concerned with the case of Calderbank v Calderbank [1976] Fam 93) Oliver LJ (as he then was) stated when considering Walker v Wilshir at p.304 that (emphasis added):

‘The court was concerned with the question of whether the contents of a letter headed “without prejudice” could be looked at at all, and the court decided that it could not – in other words, the “without prejudice” heading cast a veil, not over the date on which the letter was written or over the fact that it was written, but over the whole of the contents, which would, of course, include the purported unilateral reservation of the right to treat the letter as “with prejudice” in a certain event. If you cannot refer to the letter at all, you cannot refer to and rely on a reservation contained in it, for that is a reservation which is, in terms, repugnant to the expressed nature of the letter itself.’

Fox LJ stated at p.316:

‘what meaning is given to the words “without prejudice” is a matter of interpretation which is capable of variation according to use in the profession. It seems to me that, no issue of public policy being involved, it would be wrong to say that the words were given a meaning in 1889 which is immutable ever after …’

It has been long established that reference to the fact that without prejudice correspondence exists is admissible when for it to be held inadmissible would create a misleading impression. See, for example, Muller & Anor v Linsley and Mortimer [1994] EWCA Civ 39 per Hoffman LJ (as he then was):

‘Many of the alleged exceptions to the rule will be found on analysis to be cases in which the relevance of the communication lies not in the truth of any fact which it asserts or admits, but simply in the fact that it was made … Without prejudice correspondence is always admissible to explain delay in commencing or prosecuting litigation. Here again, the relevance lies in the fact that the communications took place and not the truth of their contents …’

A further modern authority is Unilever v Proctor & Gamble [1999] EWCA Civ 3027 where Walker LJ (as he then was) identified:

‘numerous occasions on which, despite the existence of without prejudice negotiations, the without prejudice rule does not prevent the admission into evidence of what one or both of the parties said or wrote.’

Among ‘the most important instance[s]’ of this:

‘(5) Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence. Lindley LJ in Walker v Wilsher (1889) 23 QBD 335, 338, noted this exception but regarded it as limited to “the fact that such letters have been written and the dates at which they were written”. But occasionally fuller evidence is needed in order to give the court a fair picture of the rights and wrongs of the delay.’

The most recent civil authority would appear to be Briggs & Ors v Clay & Ors [2019] EWHC 102 (Ch) where Fancourt J reviewed the relevant authorities from [42] (including Rush & Tompkins Limited v Greater London Council and Another, Walker v Wilshir, Cutts v Head, Muller and Anor v Linsley and Mortimer, and Unilever v Proctor & Gamble) before stating:

‘[129] In my judgment, the fact of without prejudice communications can properly be referred to where that fact is relevant to an issue in the case. If irrelevant to the resolution of any issue, the fact is inadmissible for that reason.’

This judgment was doubted – but seemingly not on this point – in Berkeley Square Holdings Limited & Ors v Lancer Property Asset Managements Limited & Ors [2021] EWCA Civ 551 per David Richards LJ at [83].

It is interesting against this background that in BC v BC [2026] 1 FLR 11 Peel J took the view (at [26] and [27]) that paragraph 8 of the Financial Remedy Court – Primary Principles of 11th January 2022 which suggested that the next FRC judge dealing with the case after a PFDR Appointment should be provided with a written explanation of what happened at the PFDR and which should include ‘an assurance that offers were made on each side and an indication given’ went too far and should not be relied upon. Peel J’s reasoning for this (as set out at [27]) was that:

• the FDR was a creature of statute under the MCA 1973 and the CPA 2004 and the Primary Principles did not override rules (FPR 9.17(1)) and practice directions (PD 9A para 6.2 and the President’s Circular: Financial Remedies Court Pilot Phase 2, 27th July 2018 at paragraphs 7–11) which were more restrictive than the Primary Principles in terms of what could be disclosed from the (P)FDR process;
• there was no citable case law suggesting that disclosure of these two specific matters was permitted and the authorities that considered the nature of the (P)FDR (V v W (Disclosure) [2021] 2 FLR 605 per Sir James Munby P, AS v CS [2021] EWFC 34 per Mostyn J, LS v PS (Q Company (a litigation lender) Intervening) [2021] EWFC 108 per Roberts J, and GH v GH [2024] EWHC 2547 (Fam) per Peel J) pointed the other way (even if they did not directly address the issue); and
• to refer to whether or not offers were made intruded upon the content of the (P)FDR process with no benefit because if both parties made offers, of which one is entirely reasonable and one entirely unreasonable, the court would be no further forward as it cannot know what is contained in the offers. Context is all and to permit inquiry by a later court even into whether offers were made was unprincipled, risked undermining the (P)FDR process, and could lead to ancillary disputes.

Is there a tension between the conclusion reached in the earlier authorities – and in particular Briggs & Ors v Clay & Ors – and BC v BC? It is tentatively submitted the answer to this question is ‘no’ because they are not dealing with the same issue. The former is dealing with the question of when (if at all) can the fact that without prejudice correspondence was written be referred to openly and that the ability to make such a reference may be justified (amongst other narrowly defined circumstances) when required to explain delay or apparent acquiescence and where an inability to do so may create an unfair impression in the eyes of the court. The latter is dealing with an occasion – the (P)FDR Appointment – which is by its very nature without prejudice and where there are public policy reasons to ensure the non-disclosure of the content of such meetings and where therefore (in the words of Peel J in BC v BC at [20] ‘[t]he confidentiality of the FDR process (and by extension the private pFDR process) is jealously safeguarded’ and at [29] that ‘the integrity of the FDR and pFDR process requires full respect for confidentiality’.