Savings and Investment Bank Ltd (In Liquidation) v Fincken: CA 14 Nov 2003

Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the perjury.
Held: The court had to balance the competing needs of fairness and expedition. There was nothing in the authorities (save Merrill Lynch) to support the judgment now appealed. It was a real question whether the shares at the centre of the controversy were disclosable in any event, and it was not clear that the without prejudice protection was being abused. The judge should not have been informed of the admission. The public interest in without prejudice discussion was not to be diminshed.
Rix LJ observed that the public interest in encouraging parties to speak frankly to one another in aid of reaching a settlement is very great and ought not to be sacrificed save in truly exceptional and needy circumstances: ‘It is of course distasteful for this or any court to avert its eye from an admission which, subject to any point about value, appears to incriminate Mr Fincken in lying in a sworn document. However, in the tension between two powerful public interests, it seems to me that that in favour of protection of the privilege of ‘without prejudice’ discussions holds sway – unless the privilege is itself abused in the occasion of its exercise.’
Lord Justice Rix Lord Justice Carnwath
[2003] EWCA Civ 1630, Times 25-Nov-2003, Gazette 15-Jan-2004, [2004] 1 WLR 667, [2004] 1 All ER 1125
England and Wales
CitedForster v Friedland CA 10-Nov-1992
The defendant admitted that he considered himself honour bound by an agreement, but said that if it came to litigation he would deny any legal obligation. On the facts, this was held to be ‘very far from blackmail’. As an exception to the rule that . .
CitedUnilever 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 . .
CitedCobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
FollowedBerry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
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 . .
CitedHawick Jersey International Ltd v Caplan 11-Mar-1998
The Plaintiff (H) claimed repayment of a loan to the defendant (C) of andpound;10,000 made by means of a cheque. C denied it was a loan because he had supplied andpound;10,000 cash. C secretly tape recorded a ‘without prejudice’ meeting at which (a) . .
CitedKitcat v Sharp 1882
The plaintiff clergyman had begun his action for rescission of a contract with the defendant for misrepresentattion. The defendant sent him a ‘private and confidential’ letter threatening publication of the pleadings with comments depreciating the . .
CitedMerrill Lynch, Pierce Fenner and Smith Inc v Raffa 11-May-2000
The judge ruled on the admission of admissions made by the defendant at without prejudice meetings. There was acceptance of Mr Raffa’s involvement in the fraud though he raised the question of collaborators. If he did admit at least his involvement, . .
See AlsoSavings and Investment Bank Ltd (in Liquidation) v Fincken CA 6-Nov-2001
When the court was asked to decide whether a proposed form of amendment to the pleadings would add an issue which was out of time, the court must look to the pleadings before and after the proposed amendment, and the factual issues which would have . .
See AlsoSavings and Investment Bank Ltd (in Liquidation) v Fincken ChD 2-Mar-2001
The process of testing whether a new cause of action was proposed by an amendment of pleadings to bring into question application of the Limitation Acts, was conducted by asking at what level of abstraction was it claimed that there were one or two . .
CitedFazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .

Cited by:
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
CitedBrown 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 . .
CitedBNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
CitedBNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
CitedDowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
CitedWilliams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
CitedBrunel University and Another v Webster and Vaseghi CA 22-May-2007
The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive . .
CitedBrodie v Ward (T/A First Steps Nursery) EAT 7-Feb-2007
EAT Practice and Procedure – without prejudice letter
The EAT held that the Employment Tribunal was correct in excluding a solicitor’s without prejudice letter in other proceedings which the Appellant . .

These lists may be incomplete.
Updated: 19 April 2021; Ref: scu.187787