The claimants brought a claim in passing-off first obtaining an interim injunction but then failing at trial. The defendants then claimed under the undertaking in damages given. The claimants now sought to say that the injunction could have been justified on the separate ground that the defendants were in breach of copyright. The defendants said, relying on Henderson v Henderson, that it was too late for the claimant to take the point. The claimants said they had raised the claim in negotiations but had refrained from taking proceedings in relation to the claim because the defendants in those negotiations had asked them to hold fire with respect to that claim. The defendant replied that those negotiations were without prejudice and could not be referred to.
Held: A without prejudice argument could not be used for the purpose of ‘unambiguous impropriety’. In those circumstances reliance on the privilege would be ‘plainly unconscionable’. No allegation of ‘impropriety’ or ‘unconsconability’ was made and, to that extent Hodgkinson was distinguished.
Neuberger J referred to Tomlin’s case which decided that without prejudice correspondence could be looked at to determine whether a settlement had been reached and added: ‘Although, of course, contract and estoppel are quite separate concepts, it appears to me logical and consistent that if ‘without prejudice’ correspondence can be looked at to see if it gives rise to a contract, then such correspondence can also be looked at to see if it gives rise to an estoppel. However, I do not suggest that there is an absolute rule to that effect.’
Judges:
Neuberger J
Citations:
[1997] FSR 178
Jurisdiction:
England and Wales
Citing:
See Also – Hodgkinson and Corby Ltd and Another v Wards Mobility Services Ltd ChD 3-Aug-1994
Proof of the deception of some purchasers is an essential pre-requisite of the tort of passing off. . .
Cited by:
Appeal from – Hodgkinson and Corby Ltd (T/a Raymar) v Wards Mobility Services Ltd CA 27-Oct-1997
. .
Cited – Brown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Evidence
Updated: 23 November 2022; Ref: scu.269955