Communications treated as ‘without prejudice’ can be admissible on questions of costs, says Nadya Rouben
- Without prejudice: the standard position.
- Attempts to settle: the without prejudice doctrine.
- A crucial reminder for lawyers communicating for ‘without prejudice’ protection.
When correspondence is marked as ‘without prejudice’, the standard position is that such correspondence is not admissible on the question of costs, except if it has been marked as ‘without prejudice save as to costs’ or if the right to refer to the correspondence in respect of costs has been reserved. However, on 2 July 2019, the High Court held in the case of Sternberg Reed Solicitors v Andrew Paul Harrison [2019] EWHC 2065 (Ch), [2019] Costs LR 1489 that correspondence which appears on its face to be ‘without prejudice’ (even if not expressly marked as such) can be taken into account when considering the question of costs.
Appeal
In this case, the claimant firm of solicitors (Sternberg Reed) was granted permission to appeal against a costs award
