Am I bound by "this letter is confidential" boilerplate?

Question

In a lawsuit in the UK small claims court I've been sent an offer by the defendant's solicitor. I want to communicate this information to others who have the same claim. However at the bottom of the letter is a standard boilerplate text, obviously appended to every letter they send, saying that "This letter contains confidential information". They don't say anything else about confidentiality.

I never agreed to keep anything confidential, and in their letter they say they will tell the judge about this offer if I still insist on going to court. Am I bound to keep their offer confidential?

Edit Perhaps I should have said that this was an offer made "Without prejudice, save as to costs". It sounds like that has a bearing on the confidentiality, which I did not appreciate before.

Also, I am accepting their offer, so this won't get to Court.

Answer 1

Am I bound to keep their offer confidential?

No, at least not in the UK.

In the US you could be bound if the boilerplate/disclaimer was at the top of the message.

But otherwise you are free to publish whatever drops in your inbox barring these exclusions:

• copyright considerations
• an applicable NDA if one exists
• an explicit court order prohibiting publication
• the implied confidentiality of litigation documents related to the discovery of evidence procedure.

None of the above seems to apply in your scenario, even the latter — because a settlement offer has nothing to do with discovery of evidence.

The breach of confidence doctrine cannot be applied here either because its second element does not apply:

information must have been imparted in circumstances importing an obligation of confidence

— nothing in your scenario imports an obligation of confidence.

Answer 2

"Without prejudice" does not, of itself, create an obligation of confidentiality

What it does do is prevent the contents being used against the author in any future proceedings - by this litigant or anyone else.

The purpose of civil litigation is to resolve disputes. There is another, better, cheaper and more commonly used mechanism - parties agreeing on their own resolution through negotiation. The purpose of the without prejudice rule is to allow parties to have a full and frank negotiation without the risk that what they say will bite them on the ass in court. If they do not settle, then the court cannot and will not know about any concessions or negotiating positions that either party made or took.

Adding "save as to costs" means that after the case is resolved, a party may introduce any offers they made that were better than what was won in order to show that costs should be mitigated - basically that because there was a better offer on the table the litigation was needless and the costs unnecessary.

You can share it with whoever you like - they won't be able to use it in court.

Answer 3

No one can impose a duty of confidentially upon you simply by sending you a letter, particularly when you are in an adverse position to them. You might do better to describe the offer to others that you chose to inform, rather than simply copying it.

Answer 4

in their letter they say they will tell the judge about this offer if I still insist on going to court. Am I bound to keep their offer confidential?

Except for the rather obvious would-be violations of privacy legislation (see GDPR), that sort of disclaimer seems unavailing at best.

I am not knowledgeable of the oddities of UK law, but it seems inconsistent for the defendant to impose confidentiality and at the same time announce/warn/extort you that they "will tell the judge about this offer" (side note: this sounds in extortion if their warning can be reasonably construed as an attempt to dissuade you from pursuing legal remedies).

The defendant is explicitly allowing you to determine (via your "insistence" to go to court) whether he will waive confidentiality. Thus, there would be no merit in trying to enforce an alleged "confidentiality" when he is giving you the keys to his waiver thereof.