Berry Trade Ltd and Another v Moussavi and others: CA 22 May 2003

A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, may generally not be admitted in evidence. An exception to the rule is where there is shown ‘unambiguous impropriety.’ The judge had asked himself whether there was a serious and substantial risk of perjury. That would weaken the real test, and was incorrect. The evidence here should not have been admitted.


Lord Justice Peter Gibson, Lord Justice Tuckey and Mr. Justice Nelson


[2003] EWCA Civ 715, Times 03-Jun-2003, Gazette 17-Jul-2003




England and Wales


CitedUnilever 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 . .
CitedMuller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
CitedFazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
DistinguishedDora v Semper CA 15-Mar-1999
The claimant sought to have admitted evidence that in the course of without prejudice negotiations, the defendant had threatened to put assets beyond the jurisdiction.
Held: The statement was not an admission as such and was admissible. . .
DistinguishedMerrill Lynch, Pierce Fenner and Smith Inc v Raffa 11-May-2000
The judge ruled on the admission of admissions made by the defendant at without prejudice meetings. There was acceptance of Mr Raffa’s involvement in the fraud though he raised the question of collaborators. If he did admit at least his involvement, . .
CitedWH Smith Ltd v Colman CA 20-Mar-2000
The rule against admission in evidence of the content of without prejudice negotiations was not to be set aside because a party making a ‘without prejudice’ communication puts forward an implausible or inconsistent case or faces difficulty . .
CitedKristjansson v R Verney and Co Ltd and Another CA 18-Jun-1998
The rule against the admission of without prejudice negotiations in evidence has an exception where the rule is used to hide unambiguous impropriety. That exception was not to be used to bring in mere inconsistencies in evidence. . .
CitedHawick Jersey International Ltd v Caplan 11-Mar-1998
The Plaintiff (H) claimed repayment of a loan to the defendant (C) of andpound;10,000 made by means of a cheque. C denied it was a loan because he had supplied andpound;10,000 cash. C secretly tape recorded a ‘without prejudice’ meeting at which (a) . .
CitedGreenwood v Fitt 1961
(British Columbia) In the course of without prejudice negotiations, the defendant threatened that he would give perjured evidence and bribe other witnesses to perjure themselves unless the claimants withdrew their claim.
Held: The evidence of . .

Cited by:

FollowedSavings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
CitedWilliams 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 23 November 2022; Ref: scu.182337