header-logo header-logo

09 August 2007 / Joanna Ludlam
Issue: 7285 / Categories: Features , Banking , Employment , Commercial
printer mail-detail

A rare privilege?

Two recent cases clarify when communications are properly without prejudice, says Joanna Ludlam

The principle of without prejudice privilege is trite law but its practical application is not without difficulty. Although the phrase “without prejudice” is often invoked, the circumstances in which parties to a dispute are able to use it to exclude evidence have not been as clearly defined by the courts as might be expected. Two recent cases have clarified the circumstances in which it may apply.

Without prejudice privilege attaches to documents created for the purposes of genuinely attempting to compromise or resolve disputes. The rationale behind it is to encourage parties to communicate more openly than they might otherwise do in open correspondence, which is potentially admissible in evidence against them. It is hoped that this will encourage litigants to settle their disputes, rather than resort to court proceedings. A communication which is genuinely without prejudice will be inadmissible to prove admissions or concessions contained within it.

FRAMLINGTON

In Barnetson v Framlington Group Ltd [2007] EWCA Civ 502,

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Clarke Willmott—Matthew Roach

Clarke Willmott—Matthew Roach

Partner joins commercial property team in Taunton office

Farrer & Co—Richard Lane

Farrer & Co—Richard Lane

Londstanding London firm appoints new senior partner

Bird & Bird—Sue McLean

Bird & Bird—Sue McLean

Commercial team in London welcomes technology specialist as partner

NEWS
What safeguards apply when trust corporations are appointed as deputy by the Court of Protection? 
Disputing parties are expected to take part in alternative dispute resolution (ADR), where this is suitable for their case. At what point, however, does refusing to participate cross the threshold of ‘unreasonable’ and attract adverse costs consequences?
When it comes to free legal advice, demand massively outweighs supply. 'Millions of people are excluded from access to justice as they don’t have anywhere to turn for free advice—or don’t know that they can ask for help,' Bhavini Bhatt, development director at the Access to Justice Foundation, writes in this week's NLJ
When an ex-couple is deciding who gets what in the divorce or civil partnership dissolution, when is it appropriate for a third party to intervene? David Burrows, NLJ columnist and solicitor advocate, considers this thorny issue in this week’s NLJ
NLJ's latest Charities Appeals Supplement has been published in this week’s issue
back-to-top-scroll