Application by the claimant that certain correspondence between the parties and their solicitors in April-May 2014 should be admissible as evidence, notwithstanding that most of it was headed ‘without prejudice and subject to contract’. The application was opposed.
Held: For a document to be inadmissible on the grounds that it is ‘without prejudice’, it must form part of a genuine attempt to resolve a dispute. There needs to be both a genuine dispute to be resolved and a genuine attempt to resolve it. If there is no dispute about a liability, but only a negotiation as to how and when it should be discharged, the negotiations, and documents produced in the course of them, are not covered by the ‘without prejudice’ exception to the admissibility of relevant evidence. Marking a document as ‘without prejudice’ is a strong indication that there is a genuine dispute and a genuine attempt to settle the dispute, but it is not conclusive.
In this case the correspondence should be admitted, subject to the approach taken in Denton.
David Richards J
[2014] EWHC 3322 (Ch)
Bailii
England and Wales
Citing:
Cited – South Shropshire District Council v Amos CA 1986
Lord Justice Parker said that the use of the words ‘without prejudice’ prima facie meant that a letter was intended to be a part of negotiation. A letter which purported to initiate some sort of negotiation (‘an opening shot’) is not necessarily . .
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Williams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
Cited – Pearson Education Ltd v Prentice Hall India Private Ltd QBD 9-Feb-2005
The court was asked as a preliminary question whether two letters are in fact ‘without prejudice’ communications, and whether (even if they are) they should nevertheless be before the court on a forthcoming application.
Held: The test for . .
Cited – Denton and Others v TH White Ltd and Others CA 4-Jul-2014
(De Laval Ltd, Part 20 defendant) (Practice Note) Several parties applied for relief from sanctions, having been refused at first instance:
Held: The court identified a three stage process. It should first calculate the seriousness and or . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 11 November 2021; Ref: scu.537535