Jurisdiction(s):
United Kingdom

Without prejudice privilege and third-party reports: TCC rules unilateral survey not protected; disclosure and reliance permitted despite ‘without prejudice’ label (BNP Paribas v Briggs & Forrester) – England and Wales

Published on: 31 March 2025

Published by a LexisNexis Construction expert

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Article summary

When will a report be covered by without prejudice privilege? (BNP Paribas v Briggs & Forrester)

BNP Paribas Depositary Services Ltd and another v Briggs & Forrester Engineering Services Ltd [2024] EWHC 2575 (TCC)

What are the practical implications of this case?

This ruling clarifies when without prejudice privilege (WPP) can protect a document that is not an exchange between the parties, but is created to aid the resolution of a dispute. Where a report—such as a survey, condition assessment or defects report—is procured to underpin settlement discussions, WPP may attach if clear steps are taken to align the report with the settlement process. To maximise protection, ensure the report is obtained for the purpose of facilitating negotiations and is treated in a manner consistent with confidentiality throughout its lifecycle. In particular, any party seeking to rely on WPP for such material should ensure the following are in place at the outset:

Commission the report under a mutual agreement or shared understanding between the disputing parties aimed at furthering settlement talks, and record that understanding at the time.
State that the report is confidential and maintain confidentiality in practice.

Handled in this way, a report prepared to support settlement is...

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