The parties had undertaken negotiations on a ‘without prejudice’ basis. One now sought freedom to rely upon the other’s statements.
Held: There was a need to balance the right to freedom of expression, against the need to protect the rights of others. The protection from repetition before a court of admissions made ‘without prejudice’ should be limited to those occasions where the public interests underlying the rule were plainly applicable. The ‘without prejudice’ rule must be applied carefully and only in cases to which the public interest which underlies the rule requires it to be applied: ‘Article 10 [ECHR, s.12(1) of the Human Rights Act 1998] confers on everyone the right of freedom to expression, including the right ‘to receive and impart information and ideas without interference by public authority and regardless of frontiers’. But that right is subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the rights of others. Prima facie, therefore, the right is engaged by the ‘without prejudice’ rule but justified by the public interests which underlie it. But what this part of the case does is emphasise the need to apply the ‘without prejudice’ rule with restraint and only in cases to which the public interests underlying the rule are plainly applicable.’
Sir Andrew Morritt VC
Times 02-Jan-2003, [2002] EWHC 2809
Bailii
European Convention on Human Rights 10
England and Wales
Cited by:
Appeal from – Prudential Insurance Company of America v Prudential Assurance Company Ltd CA 31-Jul-2003
The appellant sought to restrain the use in proceedings in New Zealand and elsewhere of ‘without prejudice’ documents discovered in court proceedings here.
Held: It was not sensible to elide the distinction between the two sources of . .
Cited – Wilkinson v West Coast Capital and others ChD 22-Jul-2005
A claim was to be made about actions of unfair prejudice by the directors against the minor shareholder. The court considered a preliminary issue as to the admissibility of evidence, including without prejudice correspondence.
Held: The . .
Cited – Framlington Group Ltd and Another v Barnetson CA 24-May-2007
The defendant had sought an order requiring the claimant to remove from a witness statement elements referring to without prejudice discussions between the parties before litigation began.
Held: The defendant’s appeal succeeded. The test for . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Litigation Practice, Evidence
Leading Case
Updated: 01 November 2021; Ref: scu.178694