34 / 144
In a recent English case (Stotesbury v. Turner,
1943, K.B. 370) an attempt was made to justify
the use of statements made without prejudice in
order to deprive the party making them of his
costs. The matter arose in the first instance
before an arbitrator whose duty it was to arbitrate
on a claim by the applicant for £1,135, the
defence being that the sum of £120 and no more
was lawfully due. In the course of a friendly
discussion at a preliminary meeting before the
arbitrator the respondent's solicitor
informed
the arbitrator of attempts made without prejudice
to settle the dispute and mentioned that his
client was prepared to increase a previous offer,
made without prejudice, to £550. The efforts at
settlement were inconclusive and at the hearing
before the arbitrator a bundle of correspondence
was produced on behalf of the respondent which
included a
letter written by the applicant's
solicitor to the respondent's solicitor, marked
without prejudice, and refusing the offer of £550.
Counsel for the applicant objected to the admission
of this letter on the ground that it was marked
"without prejudice," but the arbitrator stated
that it was useless to object as he knew of the
offer which had been made. By his award he
directed the respondent to pay to the applicant
a sum lower than the amount of £550 which had
been offered in settlement by the respondent,
and he directed the applicant to pay the costs of
the proceedings. An application to the High
Court to set aside the award was successful.
Atkinson. J., held that the exercise by an arbitra
tor of his discretion in dealing with the costs of
proceedings before him is identical with that of a
judge and can be exercised only
judicially.
A purported direction exercised by an arbitrator
on no grounds, or on grounds not properly before
him, could not be a judicial discretion. In the
present case the arbitrator had stated in his
award the reason why he exercised his discretion
as he did, and it was plain that he based his
discretion on the ground that an offer had been
made to the applicant "without prejudice" of
nn amount which exceeded the amount ultim
ately awarded by the arbitrator and that that
offer had been refused. His Lordship also re
ferred to seveial cases in which it has been held
that nothing which is written or said without
prejudice should be looked at without the consent
of both parties, for otherwise the whole object of
the
limitation would be destroyed. Letters
written without prejudice ought to be held very
sacred; for, if parties were to be afterwards
prejudiced by their efforts to compromise it
would be impossible to effect an amicable settle
ment of differences,
i
MEMORANDUM FROM THE
REGISTRAR OF TITLES.
Searches in the Land Registry.
PRACTITIONEHS will note that as from 3rd April,
1944, the Registrar has given directions that the
card index of the Land Registry shall contain, in
addition to the particulars prescribed by the
Rules, the name of the townland and the area in
each case. As time goes on it is believed that this
will facilitate solicitors in ascertaining exactly
the particular Folio which they require to inspect.
On the indexes the meagre particulars prescribed
by the 1937 Rules have entailed the inspection
of a large number of Folios and consequent
payment of fees which would not be necessary if
particulars of the area and townland were given.
Of course these particulars are only inserted on
the index as new Folios opened or as Dealings
with the land take place and the benefit of the
new regulation'will not be widely felt for some
considerable time.
Lodgment of Dealings in Central Office, Land
Registry.
As it would appear that practitioners are under
some misapprehension with regard to the sug
gestion contained in the "Memorandum on Land
Registry Practice" recently circulated to the
Profession, it is thought desirable to emphasise
that the suggestion was made solely
in the
interests of solicitors and their clients in view of
Rule 58 of the Land Registration Rules, 1937,
which provides that applications and Instruments
rank in priority of registration in the order in
which they are received in the Central Office.
It was considered that by adopting the sugges-
[
tion in the Memorandum as to lodgment through
the town Agents that time would be saved and
priority preserved, or
in some cases gained.
It is, of course, to be understood that there is no
obligation whatever on Practitioners to do this
and it is quite open for them either to lodge the
documents in the Local Registrar's Office or to
forward them to the Central Office by post if the
find either of these courses more convenient.
Evidence of Valuation of Property.
As some practitioners seem to be under the
impression that the Certificate of Valuation is
required where evidence of valuation is necessary,
the Registry officials desire to point out that the
production of a Certificate of Valuation is not
30