Disclosure of confidential communications

Careful consideration needs to be given to any “without prejudice” communications because there are exceptions to the general rule that this type of communication will not be disclosed to a court.

The term “without prejudice” is used when a party wants to make an offer to another party when they are in dispute, or negotiation, but wants to keep that offer confidential.  In these circumstances, any correspondence headed “without prejudice” will not be disclosed to the court dealing with the dispute and any correspondence headed “without prejudice save as to costs” will not be referred to the court  until after the court has made its decision.

There are some exceptions to this general rule, and I want to focus on just one of them. When a party seeks urgent relief, for example an injunction or freezing order from the court and makes an application “without notice” to the other party, the applicant has a duty of “full and frank” disclosure to the court.

In the case of Linsen International Limited v Humpuss Sea Transport PTE Limited [2010] the court held that the duty of full and frank disclosure might require a “without prejudice” document or some indication of its existence, to be disclosed and some disclosure of without prejudice communications would be necessary if it was clear that without it, the court might be misled or, the absent party might be disadvantaged. If the applicant fails to give full and frank disclosure, the court is entitled to dismiss their application irrespective of the merits of the application.

Careful consideration needs to be given therefore to any “without prejudice” communications in these circumstances and, if it would appear that failure to disclose them would be to the detriment of the party who has not been told about the court application, then those communications should be disclosed.