In the case of Cardiff City Football Club Limited v William Arthur McKay & Ors [2025] EWCH 1439, the significance of the “without prejudice” principle was examined. This principle protects settlement discussions from disclosure in court, encouraging parties to negotiate disputes without fear of repercussion.

The case arose when Cardiff City FC filed a Contempt Application, alleging that the Defendants had failed to comply with a disclosure order. in response, the Defendants, in their extensive Skeleton Argument, accused Cardiff City FC of abuse of process, and sought to rely upon without prejudice communications without obtaining consent or determining its admissibility.

The Court reviewed past decisions to underline the importance of protecting without prejudice communications and considered exceptions such as misrepresentation or explicit impropriety. The Defendants’ failure to formally challenge the Contempt Application and their premature disclosure of privileged communications led the Court to focus on whether these communications could be used to support their arguments.

The Defendants argued the Claimant’s use of the Contempt Application amounted to unambiguous impropriety, attempting to force disclosure they weren’t otherwise entitled to, however, the Court disagreed. The Court found no unambiguous impropriety and the without prejudice communications remained protected and inadmissible as evidence in the Defendants’ Application to strike out the Claimant’s Contempt Application as an abuse of process.

Ultimately, the Court emphasized the need for procedural correctness, requiring parties to seek a separate privilege hearing before attempting to rely on without prejudice discussions.

For further information and a detailed consideration of the case, please refer to our June 2025 newsletter