Megarry V-C said that the mere failure to use the expression ‘without prejudice’ is not decisive of whether the letter is such. The question is whether the letters were written in an attempt to compromise actual or pending litigation and, if so, whether it can be inferred from their terms and their whole context that they contained an offer in settlement for which the party who made the offer can claim privilege which prevents the acknowledgments from being relied upon for the purposes of the Act.
Megarry V-C said: ‘From the authorities put before me by Mr Prescott, it seems plain that the courts favour the protection of discussions which take place between actual or prospective litigants with a view to avoiding the expense and burden of litigation, and are very ready to hold that discussions made with this purpose are inadmissible in evidence. Men ought to be able to attempt to ‘buy their peace’ without prejudicing their positions if the attempt fails and hostilities break out or continue. The mere failure to use the expression ‘without prejudice’ does not conclude the matter. The question is whether there is an attempt to compromise actual or impending litigation, and whether from the circumstances the court can infer that the attempt was in fact to be covered by the ‘without prejudice’ doctrine.’
 RPC 287
England and Wales
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 – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Brunel University and Another v Webster and Vaseghi CA 22-May-2007
The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive . .
Cited – Best Buy Co Inc and Another v Worldwide Sales Corp. Espana Sl ChD 8-Jul-2010
The claimant accused the defendant of making threats in connection with trade mark applications. The claimants operated under US trade marks associated with ‘Best Buy’ and sought similar marks in Europe. The defendant company traded under a similar . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.243129