The Gazette 1991

april

1991

g a z e t t e

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

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,

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

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,

t Nuala Jackson

Thomas Courtney

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