Admissibility and not recoverability, that is the question: without prejudice privilege in Scotland

Without prejudice (“WP”) privilege generally covers communications between parties to a dispute or between their lawyers, made in a genuine attempt to settle that dispute. These communications are then not admissible as evidence in court. This is underpinned by a public policy that parties should be encouraged, insofar as possible, to settle disputes without resort to litigation.

However, it is important to note that WP privilege has some differences between Scotland and England and Wales. The 2024 Scottish case of Roche Diagnostics Limited v Greater Glasgow Health Board & Abbott Laboratories Limited [2024] CSOH 90 and [2024] CSOH 95 helpfully reminds us of this distinction and sets out the approach taken by the Scottish court where “without prejudice” privilege was asserted. 

That case related to a procurement process for “laboratory managed services”, commenced by a health board in August 2022 and which was ultimately abandoned. The parties engaged in a document recovery process, during which the defenders resisted disclosure of certain documents, arguing they were protected by legal professional privilege and/or had been issued on a “without prejudice” basis. 

The court considered the issues of (i) whether privilege had been waived by one of the defenders (the health board) in respect of underlying legal advice, having disclosed two documents containing summaries of the legal advice it has received; and (ii) what was the correct approach to take where WP privilege was asserted.

More information on the waiver of legal professional privilege aspects of the Roche Diagnostics case can be found here.

Without prejudice privilege

As mentioned, WP privilege generally covers communications made in a genuine attempt to settle a dispute. The principle of WP privilege essentially views settlement as more likely if parties are able to discuss fully and openly when trying to reach a settlement, knowing that certain offers, statements or concessions they make cannot then be used against them in litigation or other proceedings if the dispute ultimately does not settle.

WP privilege can apply to both oral and written communications, which attract the privilege by the nature of their content. It is therefore not necessary to label a communication as “without prejudice”, although it is advisable to do so if parties are in a dispute and may want subsequently to rely on the WP rule (and solicitors will be expected to do so).  

WP privilege has been dealt with differently by Scottish courts than those in England and Wales. This was reaffirmed by the court in this case. For further commentary on the differences between the Scottish and English approaches to privilege generally, watch out for our next blog. 

Consideration by court

The court reiterated that Scots authorities acknowledge that offers, suggestions and concessions or other statements made for the purpose of negotiating a settlement cannot be converted into admissions of fact. However, this does not apply to a “clear and unequivocal admission or statement of fact”, even if such statement is marked “without prejudice”. 

In the context of WP privilege in a document recovery exercise, whilst the court recognised the public policy behind WP privilege, it also recognised that there is a public interest in the open administration of justice. There is a balance to be found between these two competing interests.

The court noted the lack of Scottish authority to resist disclosure in a document recovery exercise on the basis of WP privilege. Therefore (unlike in English proceedings), the court would instead prefer to hear the evidence where its admissibility was challenged under reservation, before deciding if the documents in questions were truly “without prejudice”. This was noted as already being a well-recognised procedural mechanism for enabling the court to resolve the admissibility of “privileged” oral evidence.

What should you do?

In light of this, the fundamental question is one of admissibility and not recoverability, when it comes to WP documents. As noted above, it is worthwhile labelling communications as “without prejudice” if parties may want to rely on the WP privilege rule later on. However, this will not prevent a court from looking at the documents in question before deciding whether they are admissible. If you are relying on WP privilege, you may still need to disclose the documents in question to the other side and then deal with the question of whether they are admissible as evidence at a later date.

Practically, parties should be careful about the length and content of WP correspondence. The more said and the more detail included, the higher the risk of there being a “clear and unequivocal admission or statement of fact”. This is important because if a clear and unequivocal admission or statement of fact is made, WP privilege will not protect against that being admissible evidence in the Scottish courts. 

If you would like to discuss your circumstances, please contact our dispute team. 

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