In BGC Brokers LP & others v Tradition (UK) Ltd & others, the Court of Appeal dismissed BGC Brokers LP’s (“Claimant“) appeal against an order allowing inspection by several other defendants of an unredacted settlement agreement between the Claimant and Simon Cuddihy (“Third Defendant“).
The Claimant discovered that the Third Defendant had passed confidential information to Tradition (UK) Ltd (“Second Defendant“), a competitor of the Claimant.
In November 2017, a settlement agreement (“Agreement“) between the Claimant and the Third Defendant was entered into.
In the Agreement, the Third Defendant warranted that he had given full and frank disclosure of the confidential information he supplied to others, which he set out in listed documents in the Agreement. Certain listed documents were reproduced in redacted schedules to the Agreement, apart from an email which although referenced, was not reproduced (“Email“). The Agreement stipulated that the listed documents retained without prejudice privilege (“WPP“).
A number of other defendants applied for inspection of the unredacted Agreement and also the Email, asserting that it had been incorporated into the Agreement by reference. The Claimant resisted inspection on the grounds of without prejudice privilege or alternatively litigation privilege (“LP“).
The High Court rejected the claims to privilege and the Claimant appealed.
Court of Appeal Decision
The appeal was dismissed. The Court noted that the original documents (which were subject to WPP) and the redacted parts of the Agreement were distinct communications and the question was whether the relevant parts of the Agreement were also protected by WPP. The Court held that as the Agreement (including its schedules) was not part of negotiations, but rather, concluded settlement of the dispute, it was not covered by WPP.
Further, as the Email had become incorporated into the Agreement by reference, it also was not protected by WPP. This was so that, in theory, the Claimant could sue the Third Defendant for breach of warranty relating to the contents of the Email.
The Court decided held that the Agreement/Email were not subject to LP. Although the dominant purpose of the communications might have been to gather evidence against the defendants for the proceedings, the purpose of incorporating them (and referencing the Email) in the Agreement was to “benchmark or police” the Agreement, so that the Claimant could sue the Third Defendant if the warranties he gave were inaccurate.
The Court considered whether as the Settlement Agreement was a communication between opposing parties who did not have a common interest in opposing the other defendants, LP would also not apply for this additional reason. However, the Court did not reach a conclusion on this issue as it did not matter to the outcome of the case.
This case reinforces key principles relating to privilege and settlement agreements.
It further highlights that should one include or reference WPP documents in a settlement agreement in order to obtain warranties relating to communications in those documents, such documents could lose their WPP status in due course.