South Shropshire District Council v Amos
|England & Wales
|LORD JUSTICE PARKER
|25 July 1986
|Judgment citation (vLex)
| EWCA Civ J0725-5
|Court of Appeal (Civil Division)
|25 July 1986
 EWCA Civ J0725-5
Lord Justice Parker
Lord Justice Balcombe
1985 S No. 3275
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE GATEHOUSE)
Royal Courts of Justice,
MR. GERARD RYAN QC and MR. KEITH LINDBLOM (instructed by Messrs. Thompsons, Solicitors, London NW3 1DB, Agents for Messrs. Morgans, Solicitors, Ludlow, Shropshire SY8 1BA) appeared on behalf of the Defendant (Appellant)
MR. JEREMY SULLIVAN QC and MR. BRIAN ASH (instructed by Messrs. Allan Jay & Co, Solicitors, London WC1A 2TH) appeared on behalf of the Plaintiff (Respondent)
On 8th November 1986 the respondents made a discontinuance order under section 51(1) of the Town and Country Planning Act 1971 (the 1971 Act) in respect of the business use by the appellant, Mr. Amos, of premises known as The Forge, Middleton, in the County of Shropshire. That order was duly confirmed by the Secretary of State under section 51(4) of the 1971 Act on 13th July 1977. On 13th December 1977 Mr. Amos made a written claim for compensation pursuant to section 170(2) of the 1971 Act. That claim consisted in a single page document specifying the heads under which compensation was claimed. It did not contain any quantification of the amount claimed. It stated inter alia "The Claimant wishes the amount of compensation to be negotiated with his agent…"
Although corresondence ensued, it is common ground that no figures or particulars were submitted on behalf of Mr. Amos until October 1981.
On the 14th of that month David Allberry & Co., chartered surveyors who had then been appointed Mr. Amos' agents, wrote to the respondents' District Valuer advising him of their appointment. Their letter included the following paragraph:
"A meeting with the District Council has been arranged, as you know, for Tuesday next, 20 October, at which we shall be present. It is our intention at that meeting to submit a detailed claim on our client's behalf, the intention being that such a claim will be full and final under all heads and which will be included in the reference to the Lands Tribunal, the papers for which are currently in course of preparation".
This letter was not headed "Without Prejudice".
Despite what was said in that letter, however, what the agents in fact produced at the meeting was a twenty page document headed "Without Prejudice". It contained full particulars of the claim then being advanced together with submissions in support of the claim. We shall hereafter refer to it as Document "A".
It did not result in the acceptance of the claim as put, to an agreed compromise figure or to a reference to the Lands Tribunal, to which disputed questions of compensation are by section 179 of the 1971 Act to be referred. It was, after some correspondence, later superseded by an amended document in similar form and of similar length also marked "Without Prejudice" to which we shall refer as Document "B". This was sent by David Allberry & Co. to the District Valuer under cover of a letter dated 21st May 1982. That letter was itself marked "Without Prejudice" and was in the following terms:
"Further to our letter of 2 February we now enclose our client's claim in the above matter together with supporting documents.
"We would be glad to have the opportunity of a meeting in order to discuss this claim with a view to negotiating a settlement and once you have studied the documents, we will be grateful if you could suggest a date for such a meeting".
Negotiations ensued but were unsuccessful, and on 20th October 1983 the matter was referred to the Lands Tribunal under section 179 of the Act.
In the course of correspondence relating to the reference between solicitors, the respondents' solicitors wrote to the appellant's solicitors on 17th February 1984:
"I refer to previous correspondence and to your client's Without Prejudice' claims of 20th October 1981 and 21st May 1982. The Council does not accept that a claim for statutory compensation can be made on a 'without prejudice basis', particularly in view of the provisions of section 4 of the Land Compensation Act 1961 relating to costs. Would you please confirm that the claims are to be treated as 'open' claims; if not will you please submit an open claim, including full details of professional fees and earlier items previously omitted. If you adopt the latter course the Council will contend that its liability for costs (if any) should only run from the date of delivery of an open, particularised claim".
The appellant's solicitors were not prepared to agree to the two documents, being Documents "A" and "B", being treated as "open" claims and the question whether they should be admitted in evidence came before a Member of the Lands Tribunal, Mr. W.H. Rees F.R.I.C.S., for determination on a pre-trial review on 15th March 1985. He determined that the two documents should not be admitted in evidence and so ordered on 10th April 1985.
By originating summons issued pursuant to section 12(6) of the Arbitration Act 1950 and Rule 38 of the Lands Tribunal Rules 1975 and dated 10th June 1985, the respondent applied in the Queen's Bench Division of the High Court for an order that the two documents be admitted in evidence. On 21st January 1986 the matter was heard before Mr. Justice Gatehouse. The application succeeded.
The learned judge was referred to two authorities, , and , . In the first of these cases it was held that a letter headed "without prejudice", which clearly contained an offer to settle pending litigation but which was also a clear act of bankruptcy, could be put in evidence on the hearing of a bankruptcy petition on the ground that it was "one which from its character, might prejudicially affect the recipient whether or...
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...which are not preceded by any previous correspondence, these were capable of being without prejudice (eg South Shropshire CC v Amos  1 WLR 1271), depending on the substance of the communication and the facts of the The claimants also said that the documents could not constitute negoti......