Mr M Wachtel v Savannah Energy plc — 2022

This was a strike-out hearing before Employment Judge Jones on 21 February 2022. The respondent applied to strike out two pleaded detriment references in the claimant's ET1: paragraph 44(h), described as a without prejudice letter, and paragraph 44(i), a letter from the respondent's solicitors dated 16 February 2021 sent in response to pre-action correspondence and enclosing a draft ET1.

For detriment 8, the parties agreed the letter was without prejudice. The tribunal applied BNP Paribas v Mezzotero and Woodward v Santander UK PLC, and held that privilege had not been waived by copying the letter to the managing partner of Clyde & Co, who was acting as the claimant's employer and legal representative in the litigation. It found that the reference remained protected and should be struck out.

For detriment 9, the tribunal rejected the claimant's submission that the solicitor's letter lost privilege because it threatened to counterclaim if litigation proceeded. Referring to the principle that it is the occasion, not the words, that is protected, and to Savings and Investment Bank Ltd v Fincken, the tribunal held that the letter formed part of litigation correspondence and was covered by absolute privilege. The reference was struck out and removed from the proceedings. No monetary award was determined in this judgment.