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In the recent case of Jones & Ors v Lydon & Ors [2021] EWHC 2322 (Ch) the High Court confirmed that where communications are expressed to be made on a “without prejudice” basis, a clear intention must be expressed to move them to an open footing, so that without prejudice privilege will cease to apply.

The case concerned a contract dispute between the claimants, being former members of punk band, the Sex Pistols, and the proposed use of the band’s music for an upcoming television series. The defendant, former frontman John Lydon, AKA “Johnny Rotten”, refused to give his consent for the use of the band’s music in the series.

Under a band agreement made in 1998, the Sex Pistols’ music could be licensed with the majority approval of band members. After the other band members invoked the majority voting provisions of the agreement, Mr Lydon opposed the agreement. The claimants sought declaratory relief from the court to establish Mr Lydon’s obligations under the agreement.

Mr Lydon contended that the claimants were estopped from relying on the majority voting rules, on the basis that the agreement had never been relied upon and any band member could always veto a grant of rights. He sought to rely on a chain of communications between representatives of the band members in connection with an earlier dispute between them on a similar subject in 2014. All of the communications in the chain apart from the final email were marked as being made on a "without prejudice" basis.

Mr Lydon sought to argue that because the final email was never marked as “without privilege”, the correspondence should be treated as having been made on an open basis, so that he could rely upon the communication in court and on the failure of the other band members to respond to it.

Judge Sir Anthony Mann held that the final email in the chain should be treated as being made on a "without prejudice" basis, despite it not being labelled as such, because it clearly represented a continuation of the prior without prejudice correspondence. Crucially, it did not deal with an entirely separate and severable subject matter, as had been argued by the defendant. A clear statement of intention would therefore be required for the email to depart from the privileged status of the prior communications.

The judgment confirmed that where without prejudice privilege applies, it will generally operate to prevent disclosure of any reference to a failure by a party to reply to some or all of any relevant correspondence. In instances where there is sufficient clarity that the contents of the correspondence deals with a different subject matter and there is a clear indication that the correspondence was intended to be on an open basis, without prejudice protection will not apply. Therefore, a simple mistake in removing “without prejudice” from the subject line of an email will not amount to sufficient clarity.

Equally, non-response or silence to an offer made in without prejudice correspondence can also be treated as being protected.

Although it is evidently not necessary to mark without prejudice communications as such, it is still best practice to do so to avoid the time and costs incurred in a dispute of this nature.