Charles Steven Bond & Anor v Denise May Webster & Ors
[2024] EWHC 989 (Ch)
FW Aviation (Holdings) 1 Limited v VietJet Aviation Joint Stock Company
16 July 2024
[2024] EWHC 1823 (Comm)
High Court
Two companies argued over airplane leases. One company tried to use secret negotiation notes as evidence. The judge said the notes were protected and couldn't be used because there was no proof of wrongdoing. The judge also said the other company didn't give up its right to keep the negotiations secret by simply responding to the accusations.
Key Facts
- •Dispute over four Airbus A321 aircraft leased under a JOLCO (Japanese Operating Lease with Call Option).
- •VietJet defaulted on rent, leading to negotiations and a sale of bank positions to FitzWalter Capital (FWA).
- •FWA claimed termination of leases and significant debts from VietJet.
- •Aircraft were handed over to FWA but remain unexported from Vietnam.
- •FWA's Defence to Counterclaim referenced remarks made in a without prejudice meeting with VietJet's Vice-Chairman.
- •VietJet applied to strike out this material due to without prejudice privilege (WPP).
Legal Principles
Without prejudice privilege (WPP) is a rule of admissibility, founded on public policy favoring settlement and implied/express agreement of parties.
Rush & Tompkins Ltd v Greater London Council [1989] AC 1280; Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436
Exception to WPP: evidence admissible if exclusion would cloak perjury, blackmail, or 'unambiguous impropriety'.
Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436; Forster v Friedland (CA, 10 November 1992); Motorola Solutions v Hytera Communications [2021] QB 744
Unambiguous impropriety test involves evidential (conduct must be unambiguously proven) and qualitative (conduct must be unambiguously improper) aspects.
Motorola Solutions v Hytera Communications [2021] QB 744
Waiver of WPP occurs when a party uses the content of without prejudice negotiations, and the counterparty accepts that reference may be made.
Briggs v Clay [2019] EWHC 102 (Ch)
Outcomes
VietJet's application to strike out the material was granted.
The court found no unambiguous impropriety. The alleged statements were not unambiguously made (evidential issue) and did not convey unambiguously improper meaning (qualitative issue). Subsequent events were irrelevant to the admissibility of the without prejudice communications. There was no waiver of privilege.
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