The Gazette 1991

g a z e t t e

april

1991

t he d e f e n d a nt su r veyor was employed to do a report in respect of a dwelling house. Subsequently, they were sued in negligence by the purchasers who employed them. During the attempts at achieving a settlement of the plaintiff's claim, " w i t h o ut prejudice" negotiations took place and as part of these, it was agreed that the plaintiff should try to get insurance against further defects developing. To this end, another surveyor's report was obtained. The plaintiffs later sought the production of this report 11 for the purposes of the trial but the court upheld the defendant's plea of privilege f r om p r odu c t i on. Denning L.J. held " . . . if documents come into being under an express, or I would add, a tacit, agreement that they should not be used to the prejudice of either party, an order for production will not be made". 12 In order to make an admission, through the use of the words " w i t h o ut prejudice" inadmissible as evidence, it is essential to be aware of the limits wh i ch the authorities place on this exception to the general rule of admissibility:- (a) litigation must be contem- plated and the parties must be a t t emp t i ng to conc l ude a negotiated settlement thereto; (b) statements must be made bona fide by the offeror; 2. "WITHOUT PREJUDICE" - An exception to the Rule

(c) where an offer is accepted, the " w i t hout prejudice" privilege is lost; (d) the statements made " w i t h o ut prejudice" must relate to the dispute in hand; (a) Litigation must be contem- plated. The words " w i t h o ut prejudice" will only be effective when used to exclude statements made under t he p r o t ec t i ve man t le of t he words 13 where they pertain to the settlement of a dispute between t he pa r t i es and wh e re legal proceedings are contemplated. This is illustrated in the Irish case of O'F/anagan -v- Ray-Ger (1983). 14 The High Court had to decide upon the admissibility of a letter written by the defendant to the plaintiff wh i ch supported the plaintiff's claim to a beneficial interest in the property concerned. The de f endant unsuccess f u l ly sought to rely on the wo r ds " w i t h o ut prejudice" which headed this letter. The court held that these words do not constitute a magic f o r mu la and t hey have no application unless the parties are in dispute or negotiation and the communication in question is w i th a view to settlement. The court found that no dispute had existed b e t we en t he p l a i n t i ff and defendant prior to the writing of the letter and therefore the defendant was making a statement as to the plaintiff's rights and was not trying to settle a dispute. The court thus concluded that the letter should be

admitted. As Costello J stated: 5 " T he rule wh i ch excludes documents marked " w i t h o ut prejudice" has no application unless some person is in dispute or negotiation w i th another and t e r ms are o f f e r ed f or t he se t t l ement of a dispute or negotiation (see In re Daintrey (1893) 2 Q.B. 116, 119). Mrs. O'Flanagan did not threaten any legal proceedings; her main concern was to ascertain from the defendant's solicitor what the true position was about her property. Having admitted the document in evidence w i t hout having read my view as to its admissibility was con f i rmed when I did so as it will be seen that the defendant was not offering to settle a dispute but was making a statement as to the right of the plaintiff and her husband in relation to t he property; in addition he was h i ms e lf t h r e a t e n i ng legal p r o c eed i ngs aga i nst Mrs. O'Flanagan. It is clear that the defendant obviously hoped that by heading the letter " w i t h o ut prejudice" he would be able to ensure that the letter could not be used if Mrs. O'Flanagan subsequently attempted to rely on it to support her claim that the company held the property as a trustee for her and her husband. I am satisfied that the letter was a true admission and a c k n o w l e d gme nt t h at t he company held the property in t r us t ".

Doyle Court Reporters - Principal: Áine O'Farrell We have pleasure in announcing that we have introduced, for the first time in Ireland, computer assisted transcription - CAT for short. Congratulations to Claire Ó Fearafl, one of our senior reporters, who is now producing all her transcripts with CAT - with a very considerable saving in time. Six more of our reporters are also training in the use of CAT and very shortly will be able to pass on the benefits of this boon to fast transcript output to our many clients throughout Ireland. Claire 0 Fearail Congratulations also to another member of our team Joe Frayne, whose radio play, "The Judge's Man" came 4th in the Playwrights' Competition of the P.J. O'Connor Awards and will be broadcast by RTE next June. 2, Arran Quay, Dublin 7. Tel: 722833 or 862097 (after hours) T^ceííenu in Reportingsince 1954. * Niall McGarrigle, of the Law Society's Accounts Dept., was awarded 1st place in the P.J. O'Connor Playwrights Competition for his radio play "Pond Farewells." 50