Without prejudice but with consequences – unpacking Morris v Williams [2025]

In the recent case of Morris v Williams [2025] EWHC 218 (KB), District Judge Dodsworth addressed the admissibility of 'without prejudice' correspondence in the context of allegations of fundamental dishonesty. We have examined the practical implications of this judgment below. 

Background 

The claimant sought damages for personal injury sustained in a road traffic accident on 20 July 2018. Whilst the occurrence of the accident and the defendant's negligence were undisputed, the defendant had obtained surveillance evidence which, it said evidenced that the claimant had consciously exaggerated his claim and they therefore contended he was fundamentally dishonest. 

The matter came before the court in January 2025 for an interim hearing concerning an Application filed by the defendant. This Application sought an order to compel the claimant to respond to a Part 18 Request for Further Information and also to adduce evidence, in the form of a letter from the claimant’s solicitors dated 12 May 2023, which had been marked ‘Without Prejudice – save as to costs’. 

The letter in question contained a Calderbank offer in which the claimant proposed to repay an interim payment made to him and to contribute a sum to the defendant’s costs. In addition, the letter confirmed the claimant would “admit that he was fundamentally dishonest in respect of some of the representations made in respect of this 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).” 

The defendant did not accept the offer and, instead, sought to introduce the letter as evidence on the basis it fell within one of the exceptions of the ‘without prejudice rule’ as set down in Unilever Plc v Proctor and Gamble Co [2000] 1 WLR 2436 at 2442D, specifically the exception of “unambiguous impropriety”. It was the defendant’s case that the letter fell squarely within this exception as this was evidence the claimant accepted he had been fundamentally dishonest in relation to at least some aspects of his case and it was therefore averred that he should not be allowed to pursue a case where he disputed that he had been dishonest. 

Judgment 

The central issue in this case was whether the letter from the claimant's solicitor could be introduced as evidence given this had been marked ‘without prejudice’.  

As we know, 'without prejudice' communications are typically protected from disclosure in court to help foster open settlement discussions between the parties but, in the circumstances of this particular case, District Judge Dodsworth determined that such protection could not extend to communications involving unambiguous impropriety, such as attempts to settle allegations of dishonesty. He concluded that the letter dated 12 May 2023 did contain an admission that the claimant had acted in a way that was fundamentally dishonest and this “crossed the line”  into unambiguous impropriety.  

As a result, District Judge Dodsworth concluded that “to refuse to admit the Letter would permit the Claimant to benefit from an unambiguous impropriety” and would ultimately allow the claimant to forward his case on a (at least partly) false basis, such that the letter was deemed admissible in court. 

Practical implications 

This decision re-emphasises the position that the 'without prejudice' rule is not absolute and can be overridden in cases of unambiguous impropriety or indeed where any of the other exceptions set out in Unilever apply.  

It particularly serves as a cautionary reminder to litigators that communications may eventually be adduced as evidence even where such correspondence is intended to be protected by litigation privilege, particularly if the case involves allegations of dishonesty.  

Having considered the content of the letter in the Morris case, which is in fact appended to the judgment, it is clear to see why the Judge in this case came to the conclusions he did. To exclude the letter would have prejudiced the defendant’s case and unjustly benefited the claimant by allowing him to pursue a case he himself openly admitted was dishonest in part. 

Litigators and those they represent should always be aware that correspondence produced pre or post litigation can find its way into pleadings regardless of whether it is headed ‘without prejudice’ and, as such, all correspondence should be prepared with the expectation that it may eventually be put before the court. Herein lays the lesson. 

Olivia Archibald-Oddi