Litigants in person (LiPs) can benefit from the ‘without prejudice’ rule even if they do not know what it means, the Court of Appeal has made clear.
Lord Justice Vos described Mi Jung Suh, who ran a sushi restaurant in Surrey, as an “innocent abroad in litigation terms” and said he was not aware of “any evidence” that she knew what ‘without prejudice’ meant.
Rejecting a ruling by Judge Baucher and ordering a retrial, Vos LJ said that although it may be “more difficult” to determine objectively whether discussions with LiPs were without prejudice, they must be regarded “in the round”.
He went on: “The only sensible purpose for such a meeting must have been to seek some kind of solution to the litigation for Mrs Suh. That is what a settlement is, and what both parties here must objectively be regarded as having genuinely been seeking.
“There is no justification for salami slicing the interviews into parts that were open and parts that were without prejudice.”
The court heard in Suh and another v Mace (UK)  EWCA Civ 4 that Mi Jung Suh and her estranged husband Sang Kook ran a sushi restaurant in New Malden when their landlord, Mace (UK), re-entered the premises, changed the locks and “purported to” forfeit the lease.
Mr and Mrs Suh issued proceedings against Mace for damages and there were two meetings between Mrs Suh and the solicitor for Mace (UK), who worked for Surrey and Kent firm Wellers Hedleys.
During the meetings at the law firm, the events which gave rise to the appeal, Mrs Suh admitted there had been rent arrears at the time the landlord re-entered the premises.
At the trial Judge Baucher rejected her arguments that the solicitor’s statement on the meetings, and attendance notes, contained ‘without prejudice’ material and should be excluded.
The judge held that the meetings were not ‘without prejudice’, since they were not “for the purpose of a genuine attempt to compromise a dispute between the parties”. She ordered the tenants to pay outstanding rent of almost £5,900, interest and costs.
Vos LJ said Judge Baucher reached her conclusion “without hearing any evidence”.
He said: “She read the two witness statements and heard oral argument. Since the test is an objective one, it seems to me that the Court of Appeal is in as good a position as the judge to determine the matter.”
Vos LJ said Mace UK argued that even if the meetings were prima facie protected by ‘without prejudice’, the “cloak of privilege” should be denied because the tenants were using it for “perjury or unambiguous impropriety”.
Vos LJ said: “I cannot accept this submission. I do not think there is any evidence to suppose that Mrs Suh even knew what the term ‘without prejudice’ meant, let alone that she was calculating the use of it to tell lies. Mrs Suh was, on any analysis, an innocent abroad in litigation terms.”
The lord justice said that even if ‘without prejudice’ applied, the landlord argued that Mrs Suh had waived it “even if she did not know such a privilege existed” by “agreeing to put the matter before the court”.
Vos LJ said the species of waiver concerned here was “concerned with justice and with the protection of privilege itself” and it would be a “violation of that privilege” to hold that the tenant’s conduct amounted to a waiver.
He held that the tenant’s response was “provoked by the landlord’s actions in attempting to ignore the privilege that had been held to exist” and rejected the argument that the privilege had been waived.
The judge said Mace “attempted to argue” that even if the privilege existed, it would “have obviously made no difference” to the outcome of the trial.
Once again, he rejected the argument, saying it was clear that the trial judge had “placed some reliance” on the admissions made by Mrs Suh. He allowed her appeal and ordered a retrial. Lord Justice Beatson agreed.