Evidence

Privilege - party relying on without prejudice discussions when applying for injunction - other party entitled to rely on same material at trialSomatra Ltd v Sinclair Roche & Temperley (a firm); Sinclair Roche & Temperley (a firm) v Somatra Ltd v Others: CA (Waller and Clarke LJJ): 26 July 2000

The claimant claimed damages from the defendant solicitors for negligence and breach of contract and the solicitors counterclaimed for unpaid fees.

The solicitors made an ex parte application for a freezing order at which they relied on a number of without prejudice discussions which had taken place between the parties.

The claimant and the defendants by counterclaim applied for an order that the solicitors disclose all documents relating to or arising from those discussions.

The judge dismissed the application on the ground that the discussions would be inadmissible at trial.

The claimant and the defendants to the counterclaim appealed.

Christopher Symons QC and Mark Cannon (instructed by Herbert Smith) for the claimant and the defendants to the counterclaim.

Mark Cran QC and Rebecca Sabben-Clare (instructed by Ince & Co) for the solicitors.

Held, allowing the appeal in part, that if the solicitors had deployed the without prejudice material at a trial the without prejudice nature of the discussions would have been lost; that it would not be just to allow a party to deploy without prejudice material to support the merits of its case in order to obtain a freezing order but to let it prevent the other party deploying part of the same material to attempt to defeat the case on the merits at trial; and that the solicitors could not rely on the without prejudice nature of the discussions at trial (WLR).