Framlington Group Ltd v Barnetson [2007] EWCA Civ 502, [2007] All ER (D) 429 (May)
For the “without prejudice” rule to give full effect to the public policy underlying it—to encourage those in dispute to settle their differences without recourse to, or continuation of, litigation—a dispute may engage the rule although litigation has not yet begun.
The critical question for the court is where to draw the line between serving the public policy interest and wrongly preventing one party, when it comes to litigation, from putting his case at its best. The claim to privilege cannot turn on purely temporal considerations.
The critical feature of proximity relates to the subject matter of the dispute, rather than how long before the threat, or start, of litigation it was aired in negotiations between the parties. The crucial consideration is whether, in the course of negotiations, the parties contemplated, or might reasonably have contemplated, litigation if they could not agree.
