Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations between them.
Held: No distinction is to be made between party-to-party negotiations and negotiations conducted within a mediation: both are to be treated as subject to the without prejudice rule. Negotiations protected by a general Without Prejudice agreement should not be used at any point, even on issues of costs: ‘the rule in Walker v Wilshire remains good law and that the Court cannot order disclosure of ‘without prejudice’ negotiations against the wishes of one of the parties to those negotiations. This may (indeed does) mean that in some cases the Court when it comes to the question of costs cannot decide whether one side or the other was unreasonable in refusing mediation. ‘
Lord Justice Auld Lord Justice Rix Lord Justice Jacob
[2004] EWCA (Civ) 887, Times 16-Jul-2004, [2005] FSR 3, [2004] 1 WLR 3026, [2004] 4 All ER 942, [2005] CP Rep 4, (2004) 27(7) IPD 27067, [2004] 4 Costs LR 662, (2005) 81 BMLR 108, [2004] 3 Costs LR 393
Bailii
Civil Procedure Rules 44.3(4)
England and Wales
Citing:
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 – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
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 – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
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 – Shearson Lehman Hutton v Maclaine Watson (No 2) 1990
When a court orders repayment of a sum, with interest the rate of interest may be the commercial rate, which would normally be 1% above base rate, but is variable on appropriate evidence. . .
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 – 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 . .
See Also – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs Com Ltd CA 3-Mar-2004
The claimant alleged trade mark infringement by the respondents by the use of a mark in a pop-up advert.
Held: The own-name defence to trade mark infringement is limited. Some confusion may be allowed if overall the competition was not unfair . .
See Also – Reed Executive plc and Reed Solutions plc v- Reed Business Information Ltd, Reed Elsevier (UK) Ltd and totaljobs com Ltd ChD 20-May-2002
The defendant company used the trade marks of the claimant on their web-site to attract visitors. However the trade marks themselves were not visible when the site was browsed, or when it was listed on the search engine.
Held: The use of a . .
See Also – Reed Executive plc and Reed Solutions plc v- Reed Business Information Ltd, Reed Elsevier (UK) Ltd and totaljobs com Ltd ChD 19-Dec-2002
Pumfrey J said: ‘Under Art 5(1) (b) [section 10 (2)] the comparison is not a straightforward mark for sign comparison. On the contrary, it involves a global assessment of the likelihood of confusion as to origin of the goods or services concerned. . .
Cited by:
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 – Rolf v De Guerin CA 9-Feb-2011
The parties had disputed a building contract. A Part 36 offer had been made by the builder defendant, but the judgment was for rather less, and the judge awarded the claimant her costs.
Held: The court exercised its discretion to set aside the . .
Lists of cited by and citing cases may be incomplete.
Costs, Litigation Practice
Leading Case
Updated: 10 November 2021; Ref: scu.198844
