The defendants appealed against a refusal to strike out the patent infringement proceedings issued by the claimant, saying the only evidence offered was a letter written by the defendants which was headed ‘without prejudice’.
Held: The essential character of a without prejudice communication was that the writer genuinely intended it to form part of a negotiation. That might arise on the first part of a communication, as it did here. The appeal succeeded.
Laddie J referred to Standrin and said: ‘it seems to me that the Court of Appeal indicated that in determining the nature of correspondence and, in particular, in determining whether or not it is to be treated as bona fide without prejudice, it is necessary to consider all the circumstances. In that case, the common practice of negotiating when a reference to the Land Tribunal was in prospect was one factor which the Court of Appeal took into consideration. But it also took into consideration the fact that the document was headed with the words ‘without prejudice’. As Parker LJ made clear, merely putting those words on a document does not conclusively mean that the document is privileged. However the occurrence of those words may well be an important factor in determining the document’s status.
Behind this, it seems to me, is the following principle.The court has to determine whether or not a communication is bona fide intended to be part of or to promote negotiations. To determine that, the court has to work out what, on a reasonable basis, the intention of the author was and how it would be understood by a reasonable recipient.’
Times 02-Dec-2004,  EWHC 2587 (Ch),  FSR 25
England and Wales
Cited – Standrin v Yenton Minster Holmes Ltd CA 28-Jun-1991
The parties had exchanged letters asserting an insurance claim. They had been marked without prejudice, and one party now objected to their admission in evidence.
Held: The letters did not have the protection sought. At the time they were . .
Cited – Williams 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 . .
Cited – Best Buy Co Inc and Another v Worldwide Sales Corp. Espana Sl ChD 8-Jul-2010
The claimant accused the defendant of making threats in connection with trade mark applications. The claimants operated under US trade marks associated with ‘Best Buy’ and sought similar marks in Europe. The defendant company traded under a similar . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Litigation Practice
Updated: 27 June 2022; Ref: scu.220265