In a recent decision of the Competition Appeal Tribunal ("CAT"), the CAT held that an email inadvertently disclosed by a party was protected by without prejudice privilege ("WPP").
The purpose of WPP is to protect communications between parties that are aimed at resolving a dispute from being put before the court. This enables parties to communicate constructively to reach settlement without fear that any statements or admissions made in those communications may prejudice their position in the ongoing legal proceedings.
In its ruling, the CAT indicated that the threshold at which litigation is in contemplation in order for WPP to arise may be lower than that for litigation privilege.
The judgment also contains a helpful summary of the key legal principles underpinning WPP, and endorses the courts' broad approach to the application of this rule. In particular, the CAT confirmed that a communication is covered by WPP where the aim of that communication is the settlement of a dispute, even if it also covers other commercial matters that may be part of a broader negotiation.