The Gazette 1991

g a z e t t e

a p r i l 1991

the Calderbank letter would appear to have gained more wi de- spread acceptance and is not limited in its app l i ca t i on to matrimonial cases. 6. SUMMARY AND CONCLUSION As can be seen from the above, as a general rule, all admissions are admissible. To this general rule there are certain notable great exceptions. The focus of this article has been on that exception which is commonly referred to as the "w i t hout prejudice exception". In essence, this "exception" is de- pendent on the subjective intention of an offeror, where such is within the reasonable contemplation of an offeree. It is submitted by the writers that where this primary condition is fulfilled then, subject to judicial discretion and the rules intrinsic to t hat exception, communications, as defined, will ,be deemed inadmissible as evidence. It is only through an appreciation of these rules that a party may successfully invoke this particular exception to the rule pertaining to general admissi- bility. NOTES (36) See Rush and Tompkins Ltd. -v- Greater London Council and Another [1988] 3 All E.R. 737. (37) Foskett, The Law and Practice of Compromise 2nd Ed. (1985) p.108. FN 37: - "See also Bord na Mona - v- John Sisk and Son Ltd [1990] I.R. 85 where at p.88 Costello J. stated " I think that it is clear that the discussions wh i ch were held between the parties were held on a "without prejudice" basis and that even though only one of the letters is so headed that the corres- pondence between the parties took place on the same basis. It seems to me therefore that the plaintiff is entitled to claim that they were all privileged communications . . . " (38) Per Fox L.J. in Cutts -v- Head [1984] 1 All E.R. 597 - see quote at footnote 35 infra. (39) Paddock-v- Forrester (1842) 3 Man & G. 903 per Tindal C.J. " I t would be a hard thing to allow the answer to an offer, which is stated to be without prejudice, to be received in evidence, because the same words are not adopted in such answer." Re Harris (1875) 32 LT. 417 per James L.J. '

the Calderbank letter is, as I have held, sufficient to enable it to be taken into account on the question of costs; but it should not be thought that this involves the consequence that such a letter can now be used as a substitute for a payment into court, where a payment into court is appropriate. In the case of the simple money claim, a defendant who wishes to avail himself of the protection afford- ed by an offer must, in the ordinary way, back his offer with cash by making a payment in and, speaking for myself, I should not, as at present advised, be disposed in such a case to treat a Calderbank offer as carrying the same conse- quences as payment in." 54 It should be noted that the equivalence or otherwise between a payment into court and without prejudice offers in the context of an application for security for costs was discussed in SMH I PH I f f TS/ CúmmMfhg &jr -v- Pitktngton Gf e f l l ^ 6 ' The plaintiff company was incorporated outside the jurisdiction and was claiming damages for negligence against the defendant suppliers. The defend- ants applied for an order for security of costs and the plaintiffs submitted that without prejudice offers made by the defendants should be admissible on such an application as showing the sub- stance and merit of the plaintiffs' claim. It had previously been held by Lord Denning in Sk IMds&Y P»Éámmmmá:£m. m v < N M ^ that a payment into court was a matter the court might consider in relation to such an application but Judge John Newey Q.C., considering the nature of and purpose behind without prejudice negotiations, concluded that such evidence was inadmissible for this purpose also stating that " A defendant who has the misfortune to be sued by a plaintiff against whom it may be difficult to enforce an order for costs should not be at a dis- advantage in obtaining security because he has, for whatever reason, made attempts to settle the case." See also Corby District Councit- v- Hoist,and Co. Ltd.* 1 Therefore,

"w i t hout prejudice", that covers the whole correspondence. It is not necessary to go on putting "without prejudice" at the head of every letter". (40) India Rubber Gutta Percha and Telegraph Works Co. Ltd. -v- Chapman (1926) 20 BWCC 184. (41) Peacock -v- Harper (1877) 26 W.R. 109. (42) Halsbury "The Laws of England" 4th Ed.; Vol. 17 at 212 fn.10. (43) Oliver -v- Nautilus Steam Shipping Company [1903] 2. K.B. 639. (44) Loc. cit. at note 10. (45) Foskett, The Law and Practice of Compromise 2nd Ed. (1985) p. 107. (46) In the case of legal professional privilege and, in particular, in relation to putting forward such a claim in an affidavit of discovery, this is illustrated by the recent case of Bula Limited (in Receivership) and Others -v- Crowley and Others [1990] I.L.R.M. 756. At p. 758, Finlay C.J. referred to the dictum of Murphy J. in the High Court in which he stated "Discovery is a procedure which is left to the integrity of the parties themselves". The Chief Justice went on to state " I am not satisfied that such an absolute protection of the decision by a deponent with regard to the question of discovery is warranted on principle". (47) Loc. cit. at note 5. (48) Buckinghamshire County Council - v- Moran [1989] 2 All E.R. 225 at 231. (49) Loc. cit. at note 20. (50) R.S.C. Order 32 r.2. (51) Calderbank -v- Calderbank [1975] 3 All E.R. 33. (51a) Some protection of communica- tions between married couples for the purpose of aiding a peaceful resolution of marital conflicts may derive from the Constitution in this jurisdiction. In. E.R. -v- J.R. [1981] I.L.R.M. 125 Carroll J. stated "The provision of confidential marriage counselling which may help a married couple over a difficulty in their marriage is protection of the most practical kind for the family and should be fostered." (52) Computer Machinery Co. Ltd. -v- Drescher [1983] 3 All E.R. 153 per Megarry V-C. (53) Loc. cit. at note 18. (54) Ibid. (55) Simaan General Contracting Co. -v- Piikington Glass [1987] 1 All E.R. 345. (56) Sir Lindsay Parkinson and Company Ltd. -v- Trip/an Ltd. [1973] 2 All E.R. 273. (57) Corby District Council -v- Hoist and Co. Ltd. [1985] 1 All E.R. 321. •The authors would like to acknowledge the assistance of Caoive M. Collins B.A. (Mod.), Solicitor in writing this article The views expressed herein are, however, totally and exclusively those of the authors and the authors take full responsibility therefor.

" t he first letter of the corres- pondence having been headed

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