The Gazette 1991

g a z e t t e

april

1991

t he d e f e n d a nt su r veyor was

employed to do a report in respect

of a dwelling house. Subsequently,

they were sued in negligence by the

purchasers who employed them.

During the attempts at achieving a

settlement of the plaintiff's claim,

" w i t h o ut prejudice" negotiations

took place and as part of these, it

was agreed that the plaintiff should

try to get insurance against further

defects developing. To this end,

another surveyor's report was

obtained. The plaintiffs later sought

the production of this report

for

the purposes of the trial but the

court upheld the defendant's plea

of privilege f r om p r odu c t i on.

Denning L.J. held

" . . . if documents come into

being under an express, or I

would add, a tacit, agreement

that they should not be used to

the prejudice of either party, an

order for production will not be

made".

"WITHOUT PREJUDICE" -

An exception to the Rule

In order to make an admission,

through the use of the words

" w i t h o ut prejudice" inadmissible

as evidence, it is essential to be

aware of the limits wh i ch the

authorities place on this exception

to the general rule of admissibility:-

(a) litigation must be contem-

plated and the parties must be

a t t emp t i ng to conc l ude a

negotiated settlement thereto;

(b) statements must be made

bona fide by the offeror;

(c) where an offer is accepted, the

" w i t hout prejudice" privilege is

lost;

(d) the statements made " w i t h o ut

prejudice" must relate to the

dispute in hand;

(a) Litigation must be contem-

plated.

The words " w i t h o ut prejudice"

will only be effective when used to

exclude statements made under

t he p r o t ec t i ve man t le of t he

words

where they pertain to the

settlement of a dispute between

t he pa r t i es and wh e re legal

proceedings are contemplated.

This is illustrated in the Irish case

O'F/anagan

-v-

Ray-Ger

(1983).

The High Court had to

decide upon the admissibility of a

letter written by the defendant to

the plaintiff wh i ch supported the

plaintiff's claim to a beneficial

interest in the property concerned.

The de f endant unsuccess f u l ly

sought to rely on the wo r ds

" w i t h o ut prejudice" which headed

this letter. The court held that these

words do not constitute a magic

f o r mu la and t hey have no

application unless the parties are in

dispute or negotiation and the

communication in question is w i th

a view to settlement. The court

found that no dispute had existed

b e t we en

t he

p l a i n t i ff

and

defendant prior to the writing of the

letter and therefore the defendant

was making a statement as to the

plaintiff's rights and was not trying

to settle a dispute. The court thus

concluded that the letter should be

admitted. As Costello J stated:

" T he rule wh i ch excludes

documents marked " w i t h o ut

prejudice" has no application

unless some person is in dispute

or negotiation w i th another and

t e r ms are o f f e r ed f or t he

se t t l ement of a dispute or

negotiation (see

In re Daintrey

(1893) 2 Q.B. 116, 119). Mrs.

O'Flanagan did not threaten any

legal proceedings; her main

concern was to ascertain from

the defendant's solicitor what

the true position was about her

property. Having admitted the

document in evidence w i t hout

having read my view as to its

admissibility was con f i rmed

when I did so as it will be seen

that the defendant was not

offering to settle a dispute but

was making a statement as to

the right of the plaintiff and her

husband in relation to t he

property; in addition he was

h i ms e lf

t h r e a t e n i ng

legal

p r o c eed i ngs

aga i nst

Mrs.

O'Flanagan. It is clear that the

defendant obviously hoped that

by heading the letter " w i t h o ut

prejudice" he would be able to

ensure that the letter could not

be used if Mrs. O'Flanagan

subsequently attempted to rely

on it to support her claim that

the company held the property

as a trustee for her and her

husband. I am satisfied that the

letter was a true admission and

a c k n o w l e d gme nt t h at

t he

company held the property in

t r us t ".

Doyle Court Reporters -

Principal: Áine O'Farrell

We have pleasure in announcing that we have introduced, for the first time in

Ireland, computer assisted transcription - CAT for short. Congratulations to

Claire Ó Fearafl,

one of our senior reporters, who is now producing all her

transcripts with CAT - with a very considerable saving in time. Six more of our

reporters are also training in the use of CAT and very shortly will be able to

pass on the benefits of this boon to fast transcript output to our many clients

throughout Ireland.

Claire 0 Fearail

Congratulations also to another member of our team Joe Frayne, whose radio play,

"The Judge's Man"

came 4th in the Playwrights' Competition of the P.J. O'Connor Awards

and will be broadcast by RTE next June.

2, Arran Quay, Dublin 7. Tel: 722833 or 862097 (after hours)

T^ceííenu in Reportingsince 1954.

* Niall McGarrigle, of the Law Society's Accounts Dept., was awarded 1st place in the P.J. O'Connor

Playwrights

Competition for his radio play "Pond Farewells."