Rabin v Mendoza and Co: CA 1954

The plaintiffs sued the defendants for negligence in surveying a property. Before the action commenced a meeting had taken place between the plaintiffs’ solicitor and a partner in the defendants’ firm of surveyors to see if the matter could be settled without litigation. The defendants agreed at the meeting to make enquiries to see if they could obtain insurance cover against possible risk of damage to the house so that litigation could be avoided. After the interview the defendants obtained a report from another surveyor for the purpose of attempting to obtain insurance cover. No settlement was reached and the action commenced. The defendants disclosed the existence of the report in their affidavit of documents but claimed privilege from production on the ground that it was made in pursuance of a without prejudice discussion between the plaintiffs’ solicitor and the defendants’. The master, and the judge had upheld the defendant’s claim to privilege.
Held: The appeal failed.
Romer LJ said: ‘It seems to me that it would be monstrous to allow the plaintiff to make use – as he certainly would make use – for his own purposes as against the defendants of a document which is entitled to the protection of ‘without prejudice’ status.’
Denning LJ said: ‘after referring to Whiffen v. Hartwright ‘It is said, however, that, apart from legal professional privilege, there is a separate head of privilege on the ground that the documents came into existence on the understanding that they were not to be used to the prejudice of either party. ‘Without prejudice’ does not appear as a head of privilege in the White Book; but in Bray on Discovery at p. 308 it is stated: ‘The right to discovery may under very special circumstances by lost by contract as where correspondence passed between the parties’ solicitors with a view to an amicable arrangement of the question at issue in the suit on a stipulation that it should not be referred to or used to the defendant’s prejudice in case of a failure to come to an arrangement.’
That proposition is founded on Whiffen v. Hartwright (1848) 11 Beav. 111, 112, where Lord Langdale H.R. refused to order the production of letters which passed ‘without prejudice,’ observing that he ‘did not see how the plaintiff could get over this express agreement, though he by no means agreed, that the right of discovery was limited to the use which could be made of it in evidence.’ The Master of the Rolls there affirms the undoubted proposition that production can be ordered of documents even though they may not be admissible in evidence. Nevertheless, if documents come into being under an express, or, I would add, a tacit, agreement that they should not be used to the prejudice of either party, an order for production will not be made. This case seems to me to fall within that principle. This report was clearly made as a result of a ‘without prejudice’ interview and it was made solely for the purposes of the ‘without prejudice’ negotiations. The solicitor for the plaintiff himself says in his affidavit that at the time of the interview it was contemplated that steps such as these should be undertaken. I find myself, therefore, in agreement with the decision of Master Burnand and the judge that this is not a case where production should be ordered.’
Denning LJ, Romer LJ
[1954] 1 WLR 271, [1954] 1 All ER 247
England and Wales
CitedWhiffen v Hartwright 15-Apr-1848
The court refused to order the production of letters which had passed ‘without prejudice’. Lord Langdale MR observed that he ‘did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery . .

Cited by:
CitedRush 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 . .
CitedCutts 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 . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.253695