High Court Finds Impliedly 'Without Prejudice' Correspondence Admissible On Questions Of Costs

In a recent decision, the High Court has distinguished between correspondence which is expressly stated to be “without prejudice” and that which is only impliedly so, finding that the latter category (but not the former) can be taken into account on questions of costs: Sternberg Reed Solicitors v Harrison [2019] EWHC 2065 (Ch).

There is nothing surprising in the court's conclusion that correspondence which is expressly made “without prejudice” is not admissible on questions of costs, unless it has been marked “without prejudice save as to costs” or the right to refer to the correspondence for that purpose is otherwise reserved. That much was clear from previous authority.

What is more novel is the court's conclusion that correspondence which is only impliedly without prejudice can be admitted on questions of costs. That is a point on which there does not appear to be any previous authority. The Court of Appeal will not however have a chance to consider it, at least in this case, as the High Court's decision was given in an appeal on a point of law under section 69 of the Arbitration Act 1996 and, since the judge refused permission to appeal, that is the end of...