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 justification of the ‘without prejudice’ rules, namely public policy, and an agreement between the parties. Public policy need have no extra territorial effect, and on occasions the contract will conflict with and if necessary override the public policy considerations. Where the court does give effect on a contractual basis, then it can have extra territorial effect. The agreement for a without prejudice basis for negotiations in this case had not intended to exclude the use of the documents world-wide.
Lord Justice Schiemann, Lord Justice Chadwick And Lord Justice Jonathan Parker
 EWCA Civ 1154
England and Wales
Appeal from – Prudential Assurance Co Ltd v Prudential Insurance Co of America ChD 20-Dec-2002
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 . .
Cited – Scott Paper Co v Drayton Paper Works Ltd 1927
Parties to litigation should ‘be encouraged fully and frankly to put their cards on the table.’ . .
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 – 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 – 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 – 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 . .
These lists may be incomplete.
Updated: 10 January 2021; Ref: scu.185530