When are “negotiations” without prejudice? Hamish Lal reports
It is well understood that the “without prejudice” rule is underpinned by two things. First, by public policy encouraging parties to negotiate and settle their disputes out of court and second, by an express or implied agreement between the parties to the relevant negotiations. In Muller and Muller v Linsley and Mortimer (1996) 1 PNLR 74, (1994) The Times, 8 December Hoffmann LJ (as he then was) confirmed the above stating:
“[The without prejudice rule] has two justifications. First, the public policy of encouraging parties to negotiate and settle their disputes out of court and, secondly, an implied agreement arising out of what is commonly understood to be the consequences of offering or agreeing to negotiate without prejudice. In some cases both of these justifications are present; in others, only one or the other.”
The tangible legal benefit to a party of negotiations being without prejudice is equally well understood: subject to certain exceptions, privilege attaches to the content of those negotiations rendering the contents wholly inadmissible.
