Morris v Williams

[2025] EWHC 218 (KB)

Morris brought a claim for personal injuries sustained in a road traffic accident in July 2018. Negligence was not in dispute, and although Morris suffered some injuries, Williams ran a defence of fundamental dishonesty, saying that the effect and extent of the injuries had been seriously exaggerated. Williams made an application asking that a letter dated 12 May 2023, written by Morris’s then solicitors, could be adduced as evidence despite being marked, “without prejudice – save as to costs”.

The starting point for DJ Dodsworth was that without prejudice correspondence is inadmissible. In the words of Oliver LJ in Cutts v. Head [1984] Ch 290, 306:

“The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.”

However, this “without prejudice” rule is not absolute. There are exceptions, and one of those relates to situations where to exclude material marked as without prejudice would act as “a cloak for perjury, blackmail or other unambiguous impropriety”, an expression used by Hoffmann LJ in Foster v Friedland, 10 November 1992, CAT 1052.

Williams said that the letter fell firmly within this “unambiguous impropriety” exception as it demonstrated that Morris accepted that he had been fundamentally dishonest in relation to at least some aspects of his case. Morris disagreed and said even if the letter did contain any such admissions, then it was not so clear as to come within the unambiguous impropriety exception.

Here the judge agreed that the letter in question was sent in an attempt to reach a settlement. Therefore, it would normally attract the privilege that attaches to without prejudice correspondence. However the letter included the following paragraph:

“That the Claimant will admit that he was fundamentally dishonest in respect of some of the representations made in respect of his claim. However, it should be noted that he is only prepared to make such an admission on the basis that it be contained in a non-disclosure agreement to the effect that the case cannot be discussed or reported in any way, with any third parties at all (including without direct reference to the Claimant or Minster Law by name).”

Morris said that this was a promise to admit something (that some representations in respect of his claim were fundamentally dishonest) in the future if it was contained within a non-disclosure agreement. Williams said it was a clear acceptance by Morris that he had been, at least in part, fundamentally dishonest when presenting his claim.

The judge considered that the answer to the question was clear from the terms of the letter, which had been “carefully” written by an experienced solicitor:

“In my judgment the letter does fall within the unambiguous impropriety exception and should be admitted. I have found the Letter to be a clear admission of fundamental dishonesty on the part of the Claimant. That goes well beyond, say, an acceptance that the Claimant has over-egged his injuries, or their effects on his day to day activities, or a concession that some aspects of his case may be difficult to prove. All of those might be things said in usual exchanges in the context of without prejudice negotiations and which would fall to be protected by the without prejudice rule as they do not demonstrate unambiguous impropriety. Here the line has been crossed. If the Letter is excluded there is more than a risk of the Claimant perjuring himself, which would not of itself be sufficient to bring the exception into play, but the certainty that the Claimant's pleaded case was being put forward on a (at least partly) false basis, which is sufficient to bring the exception into play. This is an example where the public policy arguments in favour of litigating disputes with full disclosure trump the policy argument in allowing parties to speak candidly and with protection of the contents of the discussions, to encourage settlements.”

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