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26 June 2008 / Hamish Lal
Issue: 7327 / Categories: Features , Legal services , Procedure & practice , Profession
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The rules of the game

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.”

Tangible Benefit

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.

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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