Without Prejudice Communications in UK Law

Leading Cases
  • Unilever Plc v Procter and Gamble Company
    • Court of Appeal (Civil Division)
    • 28 October 1999

    That is particularly true where the 'without prejudice' communications in question consist not of letters or other written documents but of wide-ranging unscripted discussions during a meeting which may have lasted several hours.

    They show that the protection of admissions against interest is the most important practical effect of the rule. But to dissect out identifiable admissions and withhold protection from the rest of without prejudice communications (except for a special reason) would not only create huge practical difficulties but would be contrary to the underlying objective of giving protection to the parties (in the words of Lord Griffiths in Rush & Tompkins at p.1300)

  • Bradford & Bingley Plc v Rashid
    • House of Lords
    • 12 July 2006

    That justification, as Oliver LJ observed in Cutts v Head (see para 62 above) "essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability". No "statements or offers" were made here with a view to settling a dispute. As Mr Fenwick QC aptly put it in argument, Mr Rashid was simply asking for a concession; he was not giving one.

  • Admiral Management Services Ltd v Para-Protect Europe Ltd and Others
    • Chancery Division
    • 04 March 2002

    Similarly, in the case of a settlement made in without prejudice correspondence, the correspondence, although privileged when sent and received, is admissible in the event of a dispute as to the terms and meaning of the settlement, on the same basis that any correspondence in which a contract is made is admissible.

  • Rush & Tompkins Ltd v Greater London Council
    • House of Lords
    • 03 November 1988

    The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.

  • Savings & Investment Bank Ltd ((in Liquidation)) v Fincken (No 2)
    • Court of Appeal (Civil Division)
    • 14 November 2003

    It is not an abuse of the privilege to tell the truth, even where the truth is contrary to one's case. That, after all, is what the without prejudice rule is all about, to encourage parties to speak frankly to one another in aid of reaching a settlement: and the public interest in that rule is very great and not to be sacrificed save in truly exceptional and needy circumstances.

  • Ofulue and Another v Bossert
    • House of Lords
    • 11 March 2009

    Far from being mechanistic, the rule is generous in its application. It recognises that unseen dangers may lurk behind things said or written during this period, and it removes the inhibiting effect that this may have in the interests of promoting attempts to achieve a settlement. It is not to be defeated by other considerations of public policy which may emerge later, such as those suggested in this case, that would deny them that protection.

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Legislation
  • Serious Crime Act 2015
    • UK Non-devolved
    • January 01, 2015
    ... ... powers and duties in relation to communications; and for connected purposes ... [3rd March ... (4) If an interested person fails without reasonable excuse to comply with an order under ... that notice of the application would prejudice any right of the enforcement authority to obtain ... ...
  • Data Protection Act 2018
    • UK Non-devolved
    • January 01, 2018
    ... ... Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (S.I ... for the regulations to come into force without delay ... Annotations: Commencement Information ... (10) This section is without prejudice to other functions conferred on the Commissioner, ... ...
  • The Public Contracts Regulations 2015
    • UK Non-devolved
    • January 01, 2015
    ... ... Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see ... in the field of electronic communications ... (1) This Part does not apply to public ... (6) Paragraph (5) (b) is without prejudice to the thresholds and exclusions for which the ... ...
  • Criminal Justice and Courts Act 2015
    • UK Non-devolved
    • January 01, 2015
    ... ... , and(b) while unlawfully at large fails, without reasonable excuse, to take all necessary steps to ... (1) In section 1 of the Malicious Communications Act 1988 (offence of sending letters etc with ... or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to ... ...
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Books & Journal Articles
  • Without Prejudice Interpretation—With Prejudice Negotiations: Oceanbulk Shipping and Trading SA v TMT Asia Ltd
    • No. 15-3, July 2011
    • International Journal of Evidence & Proof, The
    ... ... To avoid the ephemeral nature of the spoken word, the uncertainty of oral communications, people write down their agreements so that their rights and duties would be governed by the written word. The written word encapsulates what was ... ...
  • Confidentiality and Liability
    • Contents
    • Advising and Representing Clients at Mediation - 2nd Edition
    • Stephen Walker/David Smith
    • 65-78
    ... ... the link between mediation and the ‘without prejudice’ rule. Its use is both a strength and ... , if in the without prejudice communications they agree to settle the dispute by Albert paying ... ...
  • Noticeboard
    • No. 10-4, July 2006
    • International Journal of Evidence & Proof, The
    ... ... at [73]).Without prejudice privilege—United KingdomWithout ... privilege renders inadmis-sible communications made during negotiations to compromise a claim ... ...
  • CONFIDENTIALITY IN MEDIATION OF MATRIMONIAL DISPUTES
    • No. 51-4, July 1988
    • The Modern Law Review
    ... ... able to resolve future differences without the intervention of a mediator or ... , rather than the “without prejudice” privilege.6 In the United States the ... substance, their intention that communications are to be “without prejudice” ... ...
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