“WITHOUT PREJUDICE”

Evening Star, Issue 22463, 7 October 1936, Page 14

“WITHOUT PREJUDICE”

A year ago a legal journal stated!: “ Perhaps few expressions are more frequently used in, or in connection with, legal documents and transactions than the words ‘ without prejudice.’ They should, however, be used with caution.” This is wise advice, as the expression is often made use of in commercial transactions when a dispute foreshadows probable litigation, the reeult usually being more surprising than pleasing to the user (comments Mr N. C. W. Edge, in ‘ The Accountant,’ London). Where a letter written by one of the parties to a dispute to the other is expressed to be “ without prejudice,” neither that letter nor the answer to it can be given in evidence on the part of the writer of the first letter, although, the answer is not expreseed to be “ without prejudice.” It has also been decided that letters passing between the solicitors of the parties and written “ without prejudice ” are inadmissible not only against the parties, but also against the solicitors. So where a correspondence has begun with a letter written “ without prejudice,” that covers the whole correspondence. On one occasion a High Court judge said : “ What I understand by a negotiation without prejudice is this: Plaintiff or defendant, a party litigant. may say to his opponent, ‘ Now you and I are likely to be engaged in severe warfare; if that warfare proceeds, you understand, I shall take every advantage of you that the game of war permits; you must expect no mercy and I shall ask for none; Wit before bloodshed let us discuss the matter, and let us agree that for the purpose of this discussion we will be more or less frank; we. will try to come to terms, and that nothing that each of us says shall ever be used against the _ other so as to interfere with our rights of war, if unfortunately war results. This is what I understood to be the meaning, not the definition, of ‘ without prejudice.’ ” As regards the non-admissibility in evidence of such letters, it should be noted that the rule has no application to a document which in its nature and character may prejudicially affect the person to whom it is addressed if he should reject the terms offered thereby ; and it does not therefore apply to a notice of an act of bankruptcy. Neither does the rule apply unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the disat the document in order to determine

pute or negotiation. The court is necessarily entitled, therefore, to look whether the conditions under which the rule alone applies exist. A