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 basis.
Held: The evidence was not admissible. There was no additional class of situation where without prejudice evidence could be admitted namely the existence of an arguably relevant fact arising from the without prejudice discussions.
Judges:
Lord Justice Ward, Lord Justice Longmore and Lord Justice Stanley Burnton
Citations:
[2010] EWCA Civ 79, [2010] CP Rep 24
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Admiral Management Services Ltd v Para-Protect Europe Ltd and Others ChD 4-Mar-2002
The claimants suspected the defendants of wrongfully using their confidential information. Their staff made an initial investigation. They obtained a search and seizure order; and the material seized was examined by the staff. A Tomlin Order was . .
Appeal from – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others ComC 29-Jul-2009
The parties disputed the admissibility in a dispute about the effect of a settlement agreement of evidence of without prejudice exchanges between the parties before it was signed. . .
Cited – Walker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
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 – Muller 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 . .
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 – Tomlin v Standard Telephones and Cables Ltd CA 1969
Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement . .
Cited – Cutts 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 . .
Cited – Sport Internationaal Bussum BV v Inter-Footwear Ltd CA 1984
There had been a contractual licence to use names and trademarks for sports shoes. An earlier action between the parties had been stayed on the terms scheduled to a Tomlin order, which provided for Inter-Footwear to pay andpound;105,000 in three . .
Cited – Instance and Others v Denny Bros Printing Ltd and Others ChD 3-Feb-2000
The dispute arose between parties to without prejudice communications or who had obtained documents from such persons and were commercially connected with them.
Held: An implied agreement would bind them as parties or by reason of the source . .
Cited – Hodgkinson and Corby Ltd and Another v Wards Mobility Services Ltd ChD 6-Nov-1996
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 . .
Cited by:
Appeal From – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 14 August 2022; Ref: scu.396768