69 / 462
g a z e t t e
april
1991
Without prejudice or without effect?
Part 1
"It is public policy to encourage litigants to settle their differences
and since they are most unlikely to negotiate satisfactorily if every
word they make can be quoted against them later, the general rule
has long been that nothing which is written or said "without
prejudice" can be referred to in court subsequently without the
consent of all parties concerned".
1
As every practising lawyer is that these words are not to be used
aware, litigation is a costly and time as if they had "magic properties".
6
consuming business. Most legal
actions have one trait in common
- they are not cut and dry. Most
have not one, but mapy, sides. As
such, common sense and mutually
fair compromise ought to prevail.
Not only are the interests of the
individual litigants furthered, but so
also are the interests of public
policy, in that valuable court time is
spared for t r u ly con t en t i ous
matters.
In the settlement of disputes,
compromise is a valued quality and
there is recognition that it ought to
be nurtured.
2
A prerequisite to
compromise is negotiation. Should
negotiations fail, were it not for
some exception to the general rule
t hat all relevant evidence is
admissible,
3
such a compromise
o f f er wou ld be admi t t ed in
evidence to the court, with adverse
consequences for the offeror.
The words "w i t hout prejudice"
form the bedrock of such an
exception to the general rule, when
used in the appropriate and
"In the settlement of disputes,
compromise is e velued quality
and there is recognition that it
ought to be nurtured."
recognised circumstances. From
the point of view of every practising
lawyer, it is imperative that the
limits of this privilege are fully
appreciated.
4
Such an exception
has received consistent endorse-
ment from the courts on the basis
that peaceful settlement of dis-
putes is to be encouraged as
furthering public policy. The most
recent example of this indorsement
by the Irish courts has come from
Murphy J in
Holland and Ors.
-v-
McGill and Ors.
(1990).
5
It has, however, been con-
sistently repeated in judicial dicta,
Indeed, the use of these precise
words may not be necessary in
order t hat inadmissibility be
achieved. As was stated by Lord
Griffiths in
Rush and Tompkins Ltd.
-v- GLC
(1988).
7
" . . . the application of the
rule is not dependent on the use
of the phrase 'without prejudice'
and if clear from the surrounding
circumstances that the parties
were seeking to compromise the
action, evidence of the content
by
Thomas Courtney,
B.A., LL.B,
&
Nuala Jackson, B.A. (Mod),
LL.M., B.L.
of those negotiations will, as a
general rule, not be admissible at
the trial and cannot be used to
establish an admission or partial
admission".
A failure to appreciate the true
boundaries of effectiveness of the
words "wi t hout prejudice" may be
clarified by a review of the current
state of the art principles, espoused
by the courts in both Ireland and
the United Kingdom. A useful,
albeit pessimistic, baseline is that
all admissions are admissible as
evidence - the words "w i t hout
prejudice" are but a qualification to
this general principle.
8
1.
"WITHOUT PREJUDICE" -
The words defined
A colourful definition of the words
was provided by Kekewich J. in
Kurtz and Co. -v- Spence and Sons
(1887).
9
"Now you and I are likely to be
engaged in severe warfare; if
that warfare proceeds you
understand I shall take every
advantage of you that the game
of war permits; you must expect
no mercy and I shall ask for
none; but before bloodshed let
us discuss the matter and let us
agree for the purpose of this
discussion we will try to come to
terms and that nothing that each
of us says shall ever be used
against the other so as to
interfere with our rights of war
if, unfortunately, war results".
A standard successful applica-
tion of the words may be seen in
Rabin
-v-
Mendoza
(1954).
10
Here,
Thomas Courtney
t
Nuala Jackson
49