The Gazette 1991

g a z e t t e

april

1991

(10)

Rabin -v- Mendoza and Co.

[1954] 1

All E.R. 247.

(11) Note that the privilege is not confined

to communications between lawyers

inter se, or even the parties themselves

inter se, but arguably has a wider

application, discussed supra.

(12) Loc. cit. per Denning L.J.

(13) The intention that the privilege would

exist is sufficient to invoke the

exception to the general Rule of

Admissibility: That words other than

"without prejudice" will invoke the

exception is discussed supra.

(14) Op Cit.

(15) Ibid at pp. 14-15.

(16) Loc. cit. per Murphy J. at pp. 7-8.

(17) Re Daintry (1893) 2 Q.B. 116, 119. This

dictum was cited with approval by

Costello J. in

O'Fianagan -v- Ray-Ger

and Others

loc. cit. at p. 14.

(18)

Cutts -v Head

[1984] 1 All E.R. 597.

(19)

Knapp -v- Metropolitan

Permanent

Building

Association

(1888) 9

N.S.W.L.R. 468 and

Bentfey -v- Nelson

[1963] W.A.R. 89.

(20)

Tomlin -v- Standard Telephones and

Cables Ltd.

[1969] 3 All E.R. 201.

(21)

Walker -v- Wiisher

(1889) 23 Q.B.D.

335.

(22) Loc. cit. but cf. Ormrod J.'s dictum in

Tomlin.

(23) Loc. cit.

(24) In the House of Lords, the sub-

contractors sought discovery of the

without prejudice documentation,

notwithstanding the inadmissibility

thereof. They contended that this

would reveal the valuation which Rush

and Tompkins Ltd. had put on the

claim and, thus, would provide "a

realistic starting point for negotiations

and therefore be likely to promote a

settlement" (per Lord Griffiths at p.

742). This argument was rejected by

the court and discovery was refused.

"If the party who obtains discovery

of- the without prejudice corres-

pondence can make no use of it at

trial it can be only of limited value to

him. It may give some insight into his

opponent's general approach to the

issues in the case but in most cases

this is likely to be of marginal signi-

ficance and will probably be revealed

to him in direct negotiations in any

event. In my view, this advantage

does not outweigh the damage that

would be done to the conduct of

settlement negotiations if solicitors

thought that what was said and

written between them would be-

come common currency available to

all other parties to the litigation".

(25) Rush and Tompkins Ltd. -v- Greater

London Council and Another

[1988] 3

All E.R. 737 at 741.

(26) Ibid, per Lord Griffiths.

(27) Discussed supra.

(28)

Bent/ey -v- Nelson

[1963] W.A.R. 89.

Here a disagreement in respect of a

lease was settled on the basis of

without prejudice communications

with the lessor being permitted to re-

enter the premises. The lessees then

sought to restrain such re-entry and at

an ex parte application to this end, the

terms of the settlement were not

disclosed to the court. It was held that

the "without prejudice" protection did

not survive once settlement had been

reached and the terms of the

settlement in their entirety should have

been disclosed to the court.

(29) Cross on Evidence 7th Ed., p. 453.

(30)

Underwood-v- Cox

[1912] 4 D.L.R. (2d)

66;

Greenwood -v- Fitts

(1961) 29

D.L.R. 260.

(31) See footnote 9.

(32) Section 32 Patents Act 1883 provides:

"where any person claiming to be

the patentee of an invention, by

circulars

advertisements

otherwise, threatens any other

person with any legal proceedings or

liability in respect of any alleged

manufacture use sale or purchase of

the invention, any person or persons

aggrieved thereby may bring an

action against him, and may obtain

injunction

against

the

continuance of such threats, and

may recover such damage (if any) as

may have been sustained thereby, if

the alleged manufacture, use, sale or

purchase to which the threats related

was not in fact an infringement of

any legal rights of the person making

such threats. Provided that this

section shall not apply if the person

making such threats with due

diligence

commences

and

prosecutes

action

for

infringement of his patent".

(33)

South Shropshire District Council -

v- Amos

[1987] 1 All E.R. 340.

(34)

Norwich Union Life insurance Co. -v-

Tony Waller Ltd.

(1984) 270 E.G. 42.

(35)

Loc. cit. at footnote 18.

Annual Review of Irish Law 1989

RAYMOND BYRNE & WILLIAM BINCHY

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