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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