Without prejudice: House of Lords upholds the protection

England’s highest court, the House of Lords has just issued a decision about without prejudice communications, which is seen as bolstering the protections given to those communications. In Ofulue v Bossett, the question was whether an old letter written between two parties in dispute about ownership of land was able to be admitted into evidence as an admission of the dispute, or whether it was excluded because without prejudice communications are normally excluded.

When people are in legal disputes, such as family law disputes, often they will try to negotiate off the record or “without prejudice” knowing that what they might say in negotiations can’t be used in evidence against them.

Lord Hope (with whom the other Law Lords with the exception of Lord Scott agreed) stated, without citations:

Sometimes letters get headed “without privilege” in the most
absurd circumstances. But where the letters are not headed “without prejudice”
unnecessarily or meaninglessly the court should be very slow to lift the
umbrella unless the case for doing so is absolutely plain. If converting
offers of compromise into admissions of acts prejudicial to the person making
them were to be permitted no attempt to compromise a dispute could ever be
made….

Where a letter is written “without prejudice” during negotiations with a
view to a compromise, the protection that these words claim will be given to it
unless the other party can show that there is a good reason for not doing so….

(T)o dissect out identifiable admissions and withhold protection from the rest of without prejudice communications would not only create huge practical difficulties but would be contrary to the underlying objective, founded partly in public policy and partly in the agreement of the parties, of giving protection to the parties so that they could speak freely about all issues in the litigation when seeking compromise….(T)his is not a situation in which arguments that resort to procedural or linguistic technicalities are appropriate.

Normally, when negotiations are entered into with a view
to settling a claim that has already been brought, one or other of two things
happens: either they result in an agreement or they break down and the claim
proceeds to judgment. If they result in agreement, the letter that was written
without prejudice is available to show what the agreement was. If the claim
proceeds to judgment, the protection remains in place while liability is still
in issue but it ceases to have any purpose when the court has resolved the
dispute. This case is unusual because the negotiations did not result in an
agreement and the claim did not proceed to judgment. It went to sleep and was
then struck out. But I would hold that this turn of events did not remove the
need for protection.…

The essence of (the without prejudice privilege) lies in the
nature of the protection that is given to parties when they are attempting to
negotiate a compromise. It is the ability to speak freely that indicates where
the limits of the rule should lie. Far from being mechanistic, the rule is
generous in its application. It recognises that unseen dangers may lurk behind
things said or written during this period, and it removes the inhibiting effect
that this may have in the interests of promoting attempts to achieve a
settlement. It is not to be defeated by other considerations of public policy
which may emerge later, such as those suggested in this case, that would deny
them that protection.

Decisions of the House of Lords, England’s highest court are respected in Australia, and often followed.