g a z e t t e
a p r i l 1991
the Calderbank letter is, as I have
held, sufficient to enable it to be
taken into account on the
question of costs; but it should
not be thought that this involves
the consequence that such a
letter can now be used as a
substitute for a payment into
court, where a payment into
court is appropriate. In the case
of the simple money claim, a
defendant who wishes to avail
himself of the protection afford-
ed by an offer must, in the
ordinary way, back his offer with
cash by making a payment in
and, speaking for myself, I
should not, as at present
advised, be disposed in such a
case to treat a Calderbank offer
as carrying the same conse-
quences as payment in."
54
It should be noted that the
equivalence or otherwise between
a payment into court and without
prejudice offers in the context of an
application for security for costs
was discussed in SMH I PH I f f TS/
CúmmMfhg &jr -v- Pitktngton
Gf e f l l ^
6
' The plaintiff company
was incorporated outside the
jurisdiction and was claiming
damages for negligence against the
defendant suppliers. The defend-
ants applied for an order for
security of costs and the plaintiffs
submitted that without prejudice
offers made by the defendants
should be admissible on such an
application as showing the sub-
stance and merit of the plaintiffs'
claim. It had previously been held
by Lord Denning in
Sk IMds&Y
P»Éámmmmá:£m.
m v
<
N M ^ that a payment into court
was a matter the court might
consider in relation to such an
application but Judge John Newey
Q.C., considering the nature of and
purpose behind without prejudice
negotiations, concluded that such
evidence was inadmissible for this
purpose also stating that
" A defendant who has the
misfortune to be sued by a
plaintiff against whom it may be
difficult to enforce an order for
costs should not be at a dis-
advantage in obtaining security
because he has, for whatever
reason, made attempts to settle
the case."
See also
Corby District Councit-
v- Hoist,and Co. Ltd.*
1
Therefore,
the Calderbank letter would appear
to have gained more wi de-
spread acceptance and is not
limited in its app l i ca t i on to
matrimonial cases.
6. SUMMARY AND CONCLUSION
As can be seen from the above, as
a general rule, all admissions are
admissible. To this general rule
there are certain notable great
exceptions. The focus of this article
has been on that exception which
is commonly referred to as the
"w i t hout prejudice exception". In
essence, this "exception" is de-
pendent on the subjective intention
of an offeror, where such is within
the reasonable contemplation of an
offeree. It is submitted by the
writers that where this primary
condition is fulfilled then, subject to
judicial discretion and the rules
intrinsic to t hat exception,
communications, as defined, will
,be deemed inadmissible as
evidence. It is only through an
appreciation of these rules that a
party may successfully invoke
this particular exception to the
rule pertaining to general admissi-
bility.
NOTES
(36) See
Rush and Tompkins Ltd. -v-
Greater London Council and Another
[1988] 3 All E.R. 737.
(37) Foskett,
The Law and Practice of
Compromise
2nd Ed. (1985) p.108.
FN 37: - "See also
Bord na Mona -
v- John Sisk and Son Ltd
[1990] I.R.
'
85 where at p.88 Costello J. stated
" I think that it is clear that the
discussions wh i ch were held
between the parties were held on a
"without prejudice" basis and that
even though only one of the letters
is so headed that the corres-
pondence between the parties took
place on the same basis. It seems to
me therefore that the plaintiff is
entitled to claim that they were all
privileged communications . . . "
(38) Per Fox L.J. in
Cutts -v- Head
[1984]
1 All E.R. 597 - see quote at
footnote 35 infra.
(39)
Paddock-v- Forrester
(1842) 3 Man
& G. 903 per Tindal C.J. " I t would
be a hard thing to allow the answer
to an offer, which is stated to be
without prejudice, to be received
in evidence, because the same
words are not adopted in such
answer."
Re Harris (1875) 32 LT. 417 per
James L.J.
" t he first letter of the corres-
pondence having been headed
"w i t hout prejudice", that covers
the whole correspondence. It is
not necessary to go on putting
"without prejudice" at the head of
every letter".
(40)
India Rubber Gutta Percha and
Telegraph
Works Co. Ltd. -v-
Chapman
(1926) 20 BWCC 184.
(41)
Peacock -v- Harper
(1877) 26 W.R.
109.
(42) Halsbury "The Laws of England"
4th Ed.; Vol. 17 at 212 fn.10.
(43)
Oliver -v- Nautilus Steam Shipping
Company
[1903] 2. K.B. 639.
(44) Loc. cit. at note 10.
(45) Foskett,
The Law and Practice of
Compromise
2nd Ed. (1985) p. 107.
(46) In the case of legal professional
privilege and, in particular, in relation
to putting forward such a claim in
an affidavit of discovery, this is
illustrated by the recent case of
Bula
Limited
(in Receivership)
and Others
-v- Crowley and Others
[1990]
I.L.R.M. 756. At p. 758, Finlay C.J.
referred to the dictum of Murphy J.
in the High Court in which he stated
"Discovery is a procedure which
is left to the integrity of the parties
themselves".
The Chief Justice went on to state
" I am not satisfied that such an
absolute protection of the decision
by a deponent with regard to the
question of discovery is warranted
on principle".
(47) Loc. cit. at note 5.
(48)
Buckinghamshire County Council -
v- Moran
[1989] 2 All E.R. 225 at
231.
(49) Loc. cit. at note 20.
(50) R.S.C. Order 32 r.2.
(51)
Calderbank -v- Calderbank
[1975] 3
All E.R. 33.
(51a) Some protection of communica-
tions between married couples for
the purpose of aiding a peaceful
resolution of marital conflicts may
derive from the Constitution in this
jurisdiction. In.
E.R. -v- J.R.
[1981]
I.L.R.M. 125 Carroll J. stated
"The provision of confidential
marriage counselling which may
help a married couple over a
difficulty in their marriage is
protection of the most practical
kind for the family and should be
fostered."
(52)
Computer Machinery Co. Ltd. -v-
Drescher
[1983] 3 All E.R. 153 per
Megarry V-C.
(53) Loc. cit. at note 18.
(54) Ibid.
(55)
Simaan General Contracting Co. -v-
Piikington Glass
[1987] 1 All E.R.
345.
(56)
Sir Lindsay Parkinson and Company
Ltd. -v- Trip/an Ltd.
[1973] 2 All E.R.
273.
(57) Corby District Council -v- Hoist and
Co. Ltd.
[1985] 1 All E.R. 321.
•The authors would like to acknowledge
the assistance of Caoive M. Collins B.A.
(Mod.), Solicitor in writing this article The
views expressed herein are, however,
totally and exclusively those of the
authors and the authors take full
responsibility therefor.
122