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The High Court has struck out parts of a defence and a counterclaim as an abuse of process on the grounds that they expressly relied on communications protected under the "without prejudice" rule, which provides that evidence of negotiations genuinely aimed at settlement is not admissible in legal proceedings. The court rejected an argument that the case fell within an exception that allows without prejudice communications to be admitted in limited circumstances for the purpose of establishing an estoppel: West v Churchill & Anor [2024] EWHC 940 (Ch).

Although the settlement negotiations in this case were not in a mediation or other formal ADR process, the principles applied by the court would apply equally in that context.

The judgment provides a useful summary of the rationale and scope of the estoppel exception. The court acknowledged that it is possible for a party to without prejudice negotiations to make promises or give assurances that, despite the absence of a concluded agreement, can reasonably be relied on by the other party and give rise to an estoppel. In this case, however, the matters relied on were no more than proposals that had been put forward in the course of unsuccessful negotiations, and so could not form the basis of an estoppel claim.

The decision illustrates that the court will not allow the estoppel exception to be used in an attempt to make settlement proposals or "agreements in principle" binding even though the negotiations did not result in a concluded agreement. 

For more detail, see this post on our Litigation Notes blog.


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Jan O'Neill

Professional Support Lawyer, London

Jan O'Neill
Jan O'Neill