The Gazette 1991

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1991

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 or 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 an injunction against the

(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. 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 (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

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 an action for infringement of his patent". South Shropshire District Council - v- Amos [1987] 1 All E.R. 340. Norwich Union Life insurance Co. -v- Tony Waller Ltd. (1984) 270 E.G. 42.

(33)

(34)

(35)

Loc. cit. at footnote 18.

Annual Review of Irish Law 1989 RAYMOND BYRNE & WILLIAM BINCHY

It 'provides an authoritative picture of each and every legal nook and cranny. It is this that ensures that the book will endure' The Cambridge Law Journal.

This is the third volume in an annual review series which provides practitioners, academics and students with an analytical, perceptive account of work by the courts, the Oireachtas, scholars and practitioners during the year. Every decision of importance by the High Court, Court of Criminal Appeal and Supreme Court is discussed. Significant Circuit Court decisions are also included. Whether the decision is unreported or reported, the Annual Review covers it, providing assessment of over 200 judgments per volume. Every Act of the Oireachtas for the relevant year is outlined. Where relevant, detailed discussion is provided to explain the background to and purpose of an Act. Proposals for change in the law from the Law Reform Commission are discussed. Statutory instruments are also listed under the relevant subject headings.

ISBN 0 947686 61-4; ISSN 0791-1084 Price C55 00 (all 3 volumes 1987, 1988 and 1989 C135 00)

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