Muller v Linsley & Mortimer

JurisdictionEngland & Wales
Judgment Date30 November 1994
Date30 November 1994
CourtCourt of Appeal (Civil Division)

Court of Appeal

Before Lord Justice Leggatt, Lord Justice Hoffmann and Lord Justice Swinton Thomas

Muller and Another
and
Linsley & Mortimer (a Firm)

Damages - "without prejudice" rule - no privilege in second action

Letters not privileged in second action

"Without prejudice" correspondence before settlement of an action for damages brought by the plaintiffs against the first plaintiff's former employer was not privileged in the plaintiffs' subsequent action for negligence against solicitors who had advised the first plaintiff before his employer had dismissed him.

The privilege did not apply because the plaintiffs asserted in their statement of claim that the settlement was an attempt to mitigate loss caused by the alleged negligence and because the defendants did not seek to show that admissions made in the course of the correspondence were true.

The Court of Appeal so held allowing an appeal by Linsley & Mortimer, the defendants, a firm of solicitors, from the dismissal by Mr Justice Bell on July 28, 1993 of their appeal against the dismissal by a Queen's Bench Master of their application for discovery of documents relating to a claim for negligence brought by Paul Milford Muller and Norma Jean Muller, the first and second plaintiffs.

Mr Jules Sher, QC and Mr Peter Castle for the defendants; Mr Michael Crane, QC, for the plaintiffs.

LORD JUSTICE HOFFMANN said the first plaintiff was a director and shareholder in a computer software company called Sagesoft Ltd. He had consulted the defendants about a dispute with the other shareholders and directors. He was concerned that the majority of the board might dismiss him from his employment and thereby activate a provision of the articles of association by which a person ceasing to be employed by the company was obliged to sell all his shares to the other shareholders at a fair value.

The solicitors advised that while still in employment he should transfer the shares to his wife. Under the articles, the board was obliged to register such a transfer if duly stamped. As the solicitors thought there was too little time to have the transfer stamped before the board met, they presented the transfer with an undertaking to have it stamped. The board rejected the transfer and purported to dismiss the first plaintiff and activate the compulsory sale.

The plaintiffs commenced proceedings against the other shareholders and the company. These were eventually settled in return for a cash payment and shares...

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71 cases
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    ...for one purpose, or to certain aspects, but not for others. 42 Mrs. Samuels-Brown referred to the case of Muller and Another v. Linsley and Mortimer ( a Firm) December 8, 1994. In that case, in a Judgment lead by Lord Justice Hoffman in the English Court of Appeal (as he then was), it was h......
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    ...in Unilever at pp.2448–49. The distinction drawn by the judge is redolent of the approach of Hoffmann LJ in Muller v Linsley and Mortimer [1996] PNLR 74 that the without prejudice rule applies only to admissions, which was rejected by the House of Lords in Ofulue v 41 I am not, however, per......
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    ...HIGH HAMILTON 5.3.1984 1984/7/2503 DUFFY v MIN FOR DEFENCE 1979 NI 120 BULA LTD v TARA MINES LTD (NO 5) 1994 1 IR 487 MULLER v LINSLEY 1996 PNLR 74 MCGRATH EVIDENCE 1ED 2005 UNILEVER PLC v PROCTOR & GAMBLE COMPANY 2000 F.S.R. 344 RUSH & TOMKINS v GREATER LONDON COUNCIL & ANOR 1989 AC 1280 ......
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3 firm's commentaries
6 books & journal articles
  • Privileges, Protections, and Immunities
    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • 25 June 2020
    ...give access to settlement documentation and correspondence relating 174 Bernardo , above note 153. 175 See Muller v Linsley & Mortimer , [1996] PNLR 74 (CA). 176 Dos Santos v Sun Life Assurance Co of Canada , 2005 BCCA 4 at para 21 [ Dos Santos ]. 177 Meyers , above note 152 at para 26. 178......
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    • Canada
    • Irwin Books The Law of Evidence. Eighth Edition
    • 25 June 2020
    ...(1973), 36 DLR (3d) 95 (BC SC) .................................................................. 199 Muller v Linsley & Mortimer, [1996] PNLR 74 (CA) ........................................ 330 Myers v DPP, [1965] AC 1001 (HL) .....................................................216, 218,......
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    • Canada
    • Irwin Books Archive The Law of Evidence. Sixth Edition
    • 8 September 2011
    ...Power Authority, [1973] 3 W.W.R. 600, 36 D.L.R. (3d) 95 (B.C.S.C.) ............................. 152, 153 Muller v. Linsley & Mortimer, [1996] P.N.L.R. 74 (C.A.) .................................. 251 Myers v. D.P.P. (1964), [1965] A.C. 1001, [1964] 3 W.L.R. 145, 128 J.P. 481 (H.L.) .............
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    .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37Miloševic (CaseNo. IT-02–54) . . . . . 103, 118,120,126, 127Muller vLinsey [1996] PNLR74, CA . . . . . . . . . 248National Justice Compania Naviera SA vPrudential Assurance Co. Ltd [1993] 2 Lloyd’sRep 68. . . . . . . . . . . . .......
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