Without prejudice material can be admitted if the issue is whether or not the negotiations resulted in an agreed settlement. Without considering the communications in question it would be impossible to decide whether there was a concluded settlement agreement or not. Once it has been decided that there is an agreement, only the material containing the agreement is held not to be privileged.
Ormrod J said that sometimes letters get headed ‘without privilege’ in the most absurd circumstances, but where a letter is not headed ‘without prejudice’ unnecessarily or meaninglessly the court should be very slow to lift the umbrella unless the case for doing so is absolutely plain.
Judges:
Danckwerts LJ, Sir Gordon Willmer, Ormrod J
Citations:
[1969] 1 WLR 1378, [1969] 3 All ER 201
Jurisdiction:
England and Wales
Cited by:
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 . .
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 – Rush 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 . .
Cited – L’Oreal Sa and others v eBay International Ag and others ChD 15-Jul-2008
In interlouctory proceedings, Ebay sought disclosure of a Tomlin settlement reached by the claimants with a co-defendant. The claimant resisted, saying that the Tomlin order was confidential.
Held: Master Gragg said: ‘on balance it must be . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 31 July 2022; Ref: scu.253691