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Jones v Lydon and without prejudice privilege: label your communications wisely

Jones v Lydon and without prejudice privilege: label your communications wisely

Overview

In Jones & Ors v Lydon & Ors [2021] EWHC 2322 (Ch), the court confirmed that, where a series of communications is expressed to be made on a "without prejudice" basis, a party must express a clear intention to move the discussions onto an open footing before without prejudice privilege will cease to apply.

A simple failure to label a single communication in the series as "without prejudice", in circumstances where that communication clearly represents a continuation of the prior without prejudice discussions, will not constitute a sufficiently clear statement of intent for these purposes.

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Background

The case involved a dispute amongst members of the band, The Sex Pistols, as to whether the consent of all band members was necessary in order for the band's music to be used in a TV series.

In putting forward his case in relation to the matters in dispute, one of the band members, John ("Johnny Rotten") Lydon, sought to rely on a chain of communications passing between representatives of the band members in connection with an earlier dispute between them on a similar topic in 2014. All of the communications in the chain save for the very final communication were marked as being made on a "without prejudice" basis. Mr. Lydon sought to argue that that final communication, which lacked the "without prejudice" label, should be treated as having been made on an open basis, such that he could rely in court both upon the communication itself and on the failure of certain of the other band members to respond to it at the time it was sent.

 

Without prejudice privilege

Without prejudice privilege exists to encourage parties to come to a resolution amongst themselves without having to bring their dispute before a court. The privilege applies to any communication made for the purpose of a genuine attempt to settle an existing dispute between the parties.  Communications which are protected by without prejudice privilege cannot be shown to the court unless all parties to the communication agree that the privilege should be waived. It is the substance of the communication that will determine whether the communication is privileged, rather than the label accorded to it, but labelling a communication as "without prejudice" is still important as it evidences the basis on which the communicating party intended it to be made.

Court's decision

The court (Sir Anthony Mann) held that the final communication in the relevant chain should be treated as being made on a "without prejudice" basis, despite it not being labelled as such. The email in question clearly represented a continuation of the prior without prejudice discussions. It had been given the same title as all the previous communications in the chain (save for the omission of the "without prejudice" label), and dealt with inter-linked issues. It did not deal with an entirely separate and severable subject matter, as Mr. Lydon had sought to argue. A clear statement of intention would therefore be required for the email to depart from the privileged status of the prior communications in the chain. A simple omission of the "without prejudice" label did not, in the circumstances, constitute a sufficiently clear indication of such an intention.

The court also confirmed that, where without prejudice privilege applies, it will generally operate to prevent not just disclosure of the relevant communication(s) passing between the parties, but also any reference to a failure by a party to reply to some or all of them.

Conclusion

This case upholds the rule that a departure from without prejudice communication requires a clear statement of intent. A mere omission of the without prejudice marking on a single communication in a series will not generally result in that communication lacking a privileged status. That being said, if the parties to the communications at issue here had taken care to ensure that each and every one of those communications had been marked as "without prejudice", then the dispute as to the status of those communications may never have arisen at all. It therefore remains prudent to label all communications intended to be made on a "without prejudice" basis as such, for the avoidance of any doubt.

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