Sang Kook Suh and Another v MacE (UK) Ltd

JurisdictionEngland & Wales
JudgeLord Justice Vos,Beatson LJ
Judgment Date15 January 2016
Neutral Citation[2016] EWCA Civ 4
Docket NumberCase No: B2/2014/1263
CourtCourt of Appeal (Civil Division)
Date15 January 2016

[2016] EWCA Civ 4




Case Number: 2KT00092

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Beatson


Lord Justice Vos

Case No: B2/2014/1263

(1) Sang Kook Suh
(2) Mi Jung Suh
Mace (UK) Limited

Ms Bo-Eun Jung (instructed under the Bar Public Access Scheme) for the first Appellant tenant, Mr Suh

Mr Richard Samuel (instructed by Goodge Law) for the second Appellant tenant, Mrs Suh

Mr Jonathan Wills (instructed by Wellers Hedleys) for the Respondent landlord, Mace (UK) Limited

Hearing date: 15 th December 2015

Lord Justice Vos



This appeal raises questions concerning the applicability of the "without prejudice" privilege to certain discussions that took place between one of two claimant tenants and the landlord's solicitor.


The tenants were a recently estranged couple, Mr Sang Kook Suh ("Mr Suh") and Mrs Mi Jung Suh ("Mrs Suh"), who had held a 20-year business lease dated 7 th May 1999 (the "lease") of restaurant premises at 1 st Floor, 41 High Street, New Malden, Surrey (the "premises"). The tenants operated the premises as a Yoshi Sushi Japanese restaurant until 14 th August 2010, when their landlord, Mace (UK) Limited ("Mace" or the "landlord"), re-entered the premises, changed the locks and purported to forfeit the lease. The director and company secretary respectively of the landlord were a Mr and Mrs Tong. On 27 th January 2012, Mr and Mrs Suh issued proceedings against Mace in the Kingston-Upon-Thames County Court claiming, ultimately, damages arising out of the landlord's alleged wrongful forfeiture of the lease.


The events which give rise to this appeal occurred in two meetings between Mrs Suh, on the one hand, and Mace's solicitor, a Ms Kate Jackson ("Ms Jackson") on the other hand. The meetings took place in Ms Jackson's office on 6 th and 27 th January 2014 (the "interviews"), and it was alleged, in broad outline, that Mrs Suh admitted that there had indeed been rent arrears when the landlord re-entered the premises. It is important to note that the most relevant admissions were made at an early stage in the first interview. The landlord later sought to admit Ms Jackson's witness statement dated 10 th February 2014 exhibiting her two attendance notes of the meetings ("Ms Jackson's statement") at the 3-day trial, which had been fixed for 17 th March 2014 before Her Honour Judge Baucher.


The judge decided the question of the admissibility of Ms Jackson's statement and Mrs Suh's statement in response dated 20 th February 2014 ("Mrs Suh's statement") at the start of the trial. She recorded that the claimants contended that the source of Ms Jackson's statement and the fact that it contained without prejudice matters meant that privilege attached, which had not been waived. The tenants said that neither Ms Jackson's statement nor Mrs Suh's statement should go before the court for the purposes of the trial.


The judge's reasoning on 17 th March 2014 was encapsulated in the following passage:-

"I have seen the statements in relation to this matter and what is evident to me is that, looking at the statements of Miss Jackson and taking into account all the matters which are raised in the statement of Mrs Suh, I am satisfied that this was not a without prejudice meeting. It was not for the purpose of a genuine attempt to compromise a dispute between the parties. It follows, therefore, that privilege does not attach and, therefore, there can be no question of any waiver".


The judge then also declined to use her case management powers to exclude the statements. She went on to decide the substantive case giving judgment on 26 thMarch 2014. She heard extensive evidence about the interviews and the events surrounding them. Her relevant findings about the evidence she heard are summarised at paragraphs 47–50 as follows:-

"47. I find that Mrs Suh did go to Miss Jackson, the defendant's solicitor, to find out what was happening in the case. I have no doubt that her retraction statement, because that is effectively what it is … was given to assist her husband's case because, effectively, for the reasons she gave, as Mrs Tong and Mr Tong set in their statements, she is scared of her husband and his authority. In my view that was self-evident from her evidence in the witness box.

48. I reject out of hand her description of what occurred at the defendants' solicitor's office and, in particular, her denial that she accepted that there were rent arrears at the time of forfeiture. I find she lied. She did tell Miss Jackson there were rent arrears.

49. Miss Jackson was an impressive witness and was placed in an invidious position when [Mrs Suh] approached her as [Mrs Suh] was a litigant in person. Miss Jackson even went so far as to seek the assistance of the court pre-trial, but unfortunately, given the closeness to this hearing date, it was impossible for the matter to be determined … before then. However, even if it had been determined at that stage, the matter would still have had to have been tested in the court given, effectively, the retraction statement from Mrs Suh.

50. Miss Jackson has also had a difficult time with her own clients. Whilst I have accepted there were rent arrears at the time of forfeiture given my findings above, I have to say that I was also unimpressed by the evidence of Mr Tong. I accept he sent the letters to which I have made reference, but I also believe he has tampered with documents, namely, amended figures, failed to produce originals and he has even blamed his own solicitor, who sits next to him for the lack of disclosure …"


The judge then made findings about whether or not the 8 disputed payments had been made to the landlord, which led to her order that the claim should be dismissed and that there should be judgment for the landlord on the counterclaim in respect of outstanding rent of £5,871.35 plus interest of £627.71. The tenants were ordered to pay all the costs except those of the final day, reflecting the judge's concern about the landlord's disclosure.


Against this background, Lewison LJ granted the tenants permission to appeal. He did so on one ground only namely that the judge's decision was "unjust because of a serious procedural or other irregularity … in that … the [judge] erred in ruling that alleged 'admissions' by [Mrs Suh], which were detailed in [Ms Jackson's statement] were not protected by the without prejudice privilege and were therefore admissible in the trial".


The Landlord raises three arguments in answer to the appeal: (a) the interviews were not without prejudice because their purpose was not to negotiate a settlement of the proceedings, (b) even if the interviews were prima facie without prejudice, the cloak of privilege should be denied to the tenants because they are using it for perjury or unambiguous impropriety, and (c) any such privilege was waived by three events. Those events were (i) the promulgation of Mrs Suh's witness statement, (ii) the tenants' application notice dated 3 rd March 2014 to cancel the special hearing fixed to decide admissibility and to consolidate the issues at the trial, and (iii) the tenant's direct access counsel's email to Ms Jackson dated 10 th February 2014 saying that it was neither necessary nor appropriate to list the matter for a case management hearing "as the issue at hand goes to credibility which is a matter ultimately for the trial judge to decide upon hearing evidence".

The circumstances in which Mrs Suh came to attend the interviews


The key factual material for the purposes of determining whether the interviews were properly to be regarded as privileged occasions relates to the purpose, rather than the contents, of the meetings. That material can be summarised quite briefly.


On 2 nd January 2014, Mrs Suh called Ms Jackson. They had not spoken before. Ms Jackson's statement describes that call and the start of the meeting on 6 th January 2014 at paragraphs 4–8:-

"4. Mrs Suh requested a meeting with me at my office. As Mrs Suh has no legal representation and is therefore acting as a litigant in person I believed I was able to meet with her and so a meeting was arranged for 4pm on Monday 6 January 2014.

5. Our telephone conversation was brief and Mrs Suh did not explain why she wanted to meet with me. The only point discussed was whether Mrs Suh was able to bring a friend with her to assist with her English and to translate if necessary. I confirmed my agreement as I thought this would be helpful.

6. As I was not sure of the nature or purpose of the meeting I took my bundles of papers into the meeting with me in order that I had any documents Mrs Suh may want to refer to to hand. I was also accompanied by my colleague Vicki Andrews to ensure a good note was taken of the meeting.

7. The first question I asked Mrs Suh was what the purpose of the meeting was. Mrs Suh explained that she wanted to know what was happening with the case and how it was progressing.

8. I was surprised by this question given that I had been served with a witness statement purportedly signed by Mrs Suh on or about 18 December 2013 …"


In the meeting that followed, Ms Jackson took Mrs Suh through a number of witness statements, application notices and amended pleadings and noted down Mrs Suh's admissions as to the existence of arrears of rent and the fact that she had not personally signed certain court documents. Paragraph 18 of Ms Jackson's witness statement recorded that "Mrs Suh went on to explain to me that she no longer...

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11 cases
  • Christopher James Briggs and Others v Alexander Clay
    • United Kingdom
    • Chancery Division
    • February 25, 2019
    ...implied waiver of the privilege attaching to without prejudice negotiations is not lightly inferred: see Sang Kook Suh v Mace (UK) Ltd [2016] EWCA Civ 4. In that case, a landlord had sought to deploy without prejudice material in correspondence before trial and the tenant engaged in debate......
  • Rmc Building & Civil Engineering Ltd v UK Construction Ltd
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    • February 15, 2016
    ...of a dispute and were part of an attempt to resolve it. 27 Mr Bowling referred me to the decision of the Court of Appeal in Sang Krok Suh v Mace (UK) [2016] EWCA Civ 4, in which the court cited a passage from the judgment of Robert Walker LJ in Unilever v Proctor & Gamble [2000] 1 WLR 2436,......
  • Upper Tribunal (Immigration and asylum chamber), 2018-10-22, HU/05492/2017
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    • Upper Tribunal (Immigration and Asylum Chamber)
    • October 22, 2018
    ...not usually be sufficient to outweigh the public interest (see LC (China) v SSHD [2014] EWCA Civ 1310 at [24]; SSHD v CT (Vietnam) [2016] EWCA Civ 4 at [18], [19] and [38]; and PF (Nigeria) v SSHD [2015] EWCA Civ 25 at [43]). Mr Howells submitted that whilst it might be difficult for the ap......
  • Joseph Ogiehor v Patrick Belinfantie
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    • Court of Appeal (Civil Division)
    • November 2, 2018
    ...Rules. It is a relatively complex provision of these rules and may not be immediately accessible to a lay person. In Sang Kook Suh and another v Mace (UK) Ltd [2016] EWCA Civ 4, this court found that a litigant in person would not have been aware of the without prejudice rule and on the fa......
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1 firm's commentaries
  • Negotiating A Settlement: Without Prejudice Privilege
    • United Kingdom
    • Mondaq UK
    • March 8, 2016 person to know what the court is and is not entitled to consider. In the recent case of Suh and Another v Mace (UK) Limited [2016] EWCA Civ 4, the Court of Appeal considered whether alleged admissions made in meetings between one of the unrepresented claimant tenants and the landlord's s......

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