Without Prejudice Challenge Fails

06 October 2010

A company that sought to give as evidence in court ‘without prejudice’ comments made by the company with which it was in dispute met with a firm rebuff from the Court of Appeal recently.

Without prejudice material is material which is used in negotiation on the understanding that it will not be referred to in court. The principle allows parties to a dispute to negotiate without having their hands tied by the consideration that everything that passes between them may be given in evidence. Only in rare circumstances is the principle breached.

In this instance, one of the parties to the dispute wanted to disclose the content of discussions ‘as an aid to the proper legal construction of a contract’. However, Longmore LJ considered that it was more important to uphold the principle of without prejudice than to allow its breach so that ‘arguably relevant’ background material was admitted by the court, adding that ‘Very few disputes about interpretation are truly informed by evidence about preceding without prejudice oral discussions’.

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