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, [2007] All ER (D) 429 (May), the question was whether
