Laceys Solicitors Laceys is a leading, forward-thinking law firm with specialist experts serving both individual and business clients across a broad spectrum of practice areas.

If Social Services have notified you about legal proceedings concerning your child please call 01202 377995.



“Without Prejudice Privilege”. Not to be used to shield inappropriate threats.

18th September 2017 by Rob Kelly

Categories: What's New?

The purpose of without prejudice privilege is to encourage parties to communicate openly without fear that things said in mediation will be used against them in court, however there are cases when this can be taken away, where the communication ‘would act as a cloak for perjury or other unambiguous impropriety”.

Ferster v Ferster and ors [2016] EWCA Civ 717 is one such case.

In this case there was a dispute between three brothers (Jonathan, Warren and Stuart) regarding their respective interests in an online gaming business.

A mediation took place during which Warren and Stuart offered to sell their shares to Jonathan. No agreement was reached at the mediation, but the mediator continued to stay in touch with the parties with the aim of reaching a negotiated settlement.

Solicitors sent, via the mediator, on behalf of Warren and Stuart, an email in which they claimed they had discovered that Jonathan had failed to disclose the existence of certain overseas bank accounts pursuant to the freezing order.  It also went on to say, that unless Jonathan agreed, within 48 hours, to pay an increased sum for Warren and Stuart’s shares, allegations would be made public and acceptance of the offer would alleviate “the need of further steps such as committal proceedings.”

Jonathan applied to the court to amend his claim alleging that his brothers who had made the offer had sought to extort a ransom price from him for his shares by making improper and unwarranted threats to cause the company to commit him for contempt and cause criminal proceedings to be brought against him unless he agreed to purchase their shares at an inflated price.

A party may be allowed to give evidence of what another said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other “unambiguous impropriety”.  The first instance judge held that the email was an attempt at blackmail which fell firmly within the exception and permitted reliance on the email.  That judgment was upheld unanimously by the three Court of Appeal judges.

In the course of their judgment the Court of Appeal agreed with the first instance judge that the threats made by the brothers unambiguously exceeded what was proper, and held that it is not necessary for threats to fall within any formal definition of blackmail for them to be regarded as “unambiguously improper”.

Comment: The opportunity to rely on an argument of “unambiguous impropriety” to defeat a without prejudice offer will not be common but this case provides a reminder that the without prejudice cloak can be overridden, and that it is not appropriate to make allegations which could amount to blackmail.

If you would like further information please contact Rob Kelly.


This article provides information and comments on legal issues and developments of interest.  The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such.  Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.
Questions relating to this article should be addressed directly to the author.


Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 377871


Rob Kelly
  • “Rob Kelly has been absolutely exceptional in resolving this litigation and so thorough in everything and basically gave the opposition a masterclass of his work that he is so good at.”

    Paul Jeffcoate - Contentious Probate Client

  • “I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”

    Dan Collins

  • “ I just wanted to thank you for your great work on the professional negligence case and other cases you have represented Indian Ocean and Tiien through the last few years.”

    Mehdi Vahdati, Director and Proprietor - Indian Ocean (Bournemouth) Limited

  • “A case that was initially very straightforward became difficult and, for me, very frustrating. Rob Kelly's calm, lucid and very professional advice and planning were invaluable and led to a good outcome.”

    Don Young

  • “Their Fee Management was exemplary and the expertise provided by Rob was exactly what we required.”

    Sunseeker London Limited

  • “I've worked with a fair few lawyers over the years and Rob Kelly is the most on the ball and efficient lawyers I've ever come across. I'm looking forward to working together for many years to come.”

    Roger Woodall CEO - Diamond Sporting Group

Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.

Contentious wills, probate and trusts

More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years.  He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.

Rob’s practice embraces:

  • Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
  • Disappointed beneficiary claims
  • Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
  • Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
  • Proprietary estoppel claims
  • Disputes about the proper construction, and rectification, of wills
  • Caveats
  • Professional liability claims arising from the preparation of wills and trusts and the administration of estates

He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.

Property disputes

The other side of Rob’s practice is contentious property work.  This embraces:

  • Residential and commercial landlord and tenant disputes
  • Disrepairs
  • Repairing covenants
  • Possession claims
  • Lease termination and lease forfeiture
  • Dilapidations
  • Service charge disputes
  • Interpretation and enforcement of leasehold covenants

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

Rob is an Associate Member of the Chartered Institute of Legal Executives.  He holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006, was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice, and is a member of the Civil Mediation Council.

Related articles

facts and myths crossed out

IP myth: Protecting your business name at Companies House provides you with automatic trade mark rights

It is a common misconception that registering a company name at Companies House automatically grants you rights...

Read Article

music writing

Ed Sheeran’s “Oh I” v Sam Chokri’s “Oh Why”

It has been another busy few months in the world of intellectual property, with Ed Sheeran in...

Read Article

Close X