Citation: [2024] EWHC 2575 (TCC)
Facts
The claimant (BNP) engaged the defendant (B&F) to design and construct stair pressurisation works in a 30-storey office tower. These works would include removing the existing system and installing an improved system. The contract was an amended 2016 JCT Design and Build contract.
Works were complicated due to the presence of asbestos in the building. An issue arose between the parties as to the extent of the asbestos removal works, and whether B&F was obligated to carry out additional surveys and the asbestos removal works that were subsequently required, as well as additional structural works that had not initially been foreseen as part of its original scope of work. When further asbestos was discovered, the works were halted, and B&F issued a suspension and then termination notice. BNP treated this as repudiatory breach and sought declarations that B&F was not entitled to serve either the suspension or termination notices, and that in doing so, they had breached the contract.
In a previous reported judgment, following trial the court granted both declarations, finding that B&F had no right to terminate the contract, and that B&F had full responsibility for removing the asbestos under the contract.
This judgment followed a pre-trial application concerning the use of without prejudice (“WP”) evidence. The judgment has only recently been released due to confidentiality restrictions.
BNP brought an application which asked the court to determine whether B&F should be barred from relying on asbestos survey at the forthcoming trial of the underlying claim. This survey had been unilaterally commissioned by BNP and was not initially disclosed to B&F. Subsequently, the survey report was provided to B&F’s solicitors on an allegedly WP basis. The letter containing the survey said that opening the folder would constitute acceptance of certain conditions, including that Briggs would not seek to rely on the documents at trial. BNP also submitted that the survey was, in any event, properly covered by WP privilege.
Decision
The judge decided that the survey was not covered by WP privilege because BNP commissioned the survey unilaterally and not as part of a set of processes or mechanisms by which the parties agreed they would progress their negotiations. WP privilege does not attach in such circumstances, even if the party's purpose in commissioning the survey was to promote, assist or inform interparty settlement negotiations.
As to the terms of the letter to which the survey was attached, the judge held that it would be inappropriate to grant BNP relief, as the majority (if not all) of the survey reports were documents that ought to have been disclosed following the Court’s disclosure order. Even if B&F should not have accessed the link to the survey provided in the letter, the practical result would simply have been that it received documents it should have received in the first place (but did not because of BNP’s failure to comply with its disclosure obligations).
Accordingly, B&F was permitted to rely on the survey reports at trial.
Commentary
This is another interesting judgment dealing with a novel point as to the scope of the without prejudice privilege rule. Parties and advisors should think carefully about its impact when obtaining reports or surveys during the course of ongoing settlement discussions.
James Frampton acted for B&F, instructed by Hawkswell Kilvington Limited.
