Waiver of without prejudice privilege in disciplinary prosecutions of lawyers

It has never been clear to me that anyone was entitled in a disciplinary prosecution to refer to statements made ‘without prejudice’ unless the joint privilege holders (the disputants on whose behalf the communication was made, and made to) waived it.  Now I have found an authority on the question in Legal Practitioners Complaints Committee v David F [2006] WASAT 352, a disciplinary prosecution of a lawyer who allegedly made misleading comments during a negotiation.  Western Australia’s State Administrative Tribunal held that without prejudice statements could be adduced in evidence against him:

‘Abuse of process

79 In answer to the allegations the practitioner asserted that the complaint should be struck out or permanently stayed as an abuse of process. That submission was based upon the proposition that the communications, said to comprise the misleading representations, occurred in the context of without prejudice correspondence or statements. It was submitted that the public interest in fostering the comprise of disputes requires that such communications not be disclosed or relied upon outside of the settlement discussion, except in cases of “unambiguous impropriety”. That proposition is said to be supported by the decision in Unilever plc v Procter & Gamble Co (1999) 2 All ER 691.

80 The decision in Unilever concerned an action for a declaration, concerning certain patents, the foundation for which was a statement, made by the defendant to the plaintiff, in the course of a without prejudice meeting concerning other proceedings in France against a third party. Laddie J referred to a statement by Hoffmann LJ in an earlier case where he had said “the without prejudice rule would be seriously impaired if its protection could be removed for anything less than unambiguous impropriety”. Counsel for [the practitioner] argued that [the practitioner]’s conduct could not be construed as “unambiguous impropriety” and accordingly the interest in protecting without prejudice communications requires that the correspondence in this case should not be relied upon outside of the settlement negotiations and in particular in the context of this complaint of unprofessional conduct.

81 Consideration of what Laddie J subsequently said in the decision demonstrates that, in the context of this case, the respondent’s contention on this point is misconceived. Laddie J said (at [34]):

” … it appears to me that where a party wishes to rely on without prejudice correspondence or statements outside the settlement discussions, the onus is on him to show that there is a public interest in favour of such use which outweighs the public interest in fostering the non-litigious compromise of disputes. Where one party is relying on some alleged wrongdoing by the other, as Unilever does here, it must show that it is substantial. A party who does no more than put forward his case strongly but honestly and fairly in the course of discussions does not thereby destroy the without prejudice privilege …”

82 He then discussed examples of where the public interest in encouraging compromise might outweigh the public interest in discouraging patentees from threats, and cases where it might not.

83 The public interest in practitioners acting professionally both in the conduct of litigation and in matters ancillary to it is extremely important. The proposition which the practitioner appears to advance is that unless the wrongdoing can be categorised as “unambiguous impropriety”, a solicitor can engage in some minor impropriety in the course of without prejudice dealings with impunity. That proposition is clearly untenable. There is no room for unfairness or deception in negotiations for the compromise of litigation, or otherwise in dealings between solicitors.

84 Where an allegation of unprofessional conduct is made in relation to conduct taking place in the course of without prejudice negotiations, the public interest demands that those allegations be properly considered and dealt with. A solicitor is not entitled to be shielded from the allegations simply by asserting the existence of without prejudice privilege.’

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