‘An offer to settle a case for no damages but an admission of liability was a valid part 36 offer and it was not unjust to apply the usual consequences of beating an offer when the claimant won at trial, the High Court has ruled.’
Litigation Futures, 28th August 2019
‘That mediation proceedings are confidential is taken as axiomatic. What is said and done in the course of a mediation remains there. The same goes for documents of whatever kind, and their contents, created for the purposes of the mediation. In the above case Master Howarth appears to have qualified these propositions to some extent.’
Garden Court Chambers, 31st January 2017
‘The claimant bank brought a claim for professional negligence against the defendant firm of solicitors. The claimant’s solicitors sent a letter to the defendant’s solicitors stating that they were accepting the defendant’s offer to settle contained in a “ without prejudice save as to costs” letter (“WPSAC letter”) and enclosing a draft Tomlin order. A series of without prejudice letters and conversations followed. The defendant’s solicitors wrote reiterating the terms of their offer of settlement. Subsequently, the claimant’s solicitors sent a without prejudice letter containing a CPR Pt 36 offer. The parties differed as to the effect of the claimant’s Part 36 offer on the defendant’s WPSAC letter. The defendant contended that the claimant’s Part 36 offer was a counteroffer and, in law, had the effect of rejecting its WPSAC letter so that thereafter, it was not open for acceptance.’
WLR Daily, 4th July 2016
‘The ‘without prejudice’ privilege refers to the inadmissibility of any party communications targeted toward settlement. The objective of this privilege is to encourage parties engaging in settlement consideration, by ensuring any information disclosed in the pursuit of settlement cannot be submitted in litigation proceedings (see Lord Griffiths in Rush & Tomkins v GLC  1 AC 1280).’
Law Society’s Gazette, 15th February 2016
‘Communications made at a time when there was no dispute could not, with retrospective effect, be made subject to the without prejudice privilege by subsequently rasing a dispute.
WLR Daily, 10th October 2014
“When a litigator enters into settlement discussions, the general rule is that the content of those communications are protected by the Without Prejudice Rule and cannot be relied upon as evidence in court if the case doesn’t settle. This rule, however, does not constitute a blanket ban. In this note James Barnard reminds us of the Without Prejudice Rule framework, its recognised exceptions and how the Supreme Court case of Oceanbulk Shipping & Trading SA v TMT Asia Ltd  UKSA 44 created another wide-ranging exception.”
Full story (PDF)
11 Stone Buildings, February 2013
Virgin Atlantic Airways Ltd v Jet Airways (India) Ltd and others; Zodiac Seats UK Ltd and another v Virgin Atlantic Airways Ltd; Premium Aircraft Interiors UK Ltd v Comptroller General of Patents, Designs and Trade Marks and another  EWHC 3318 (Pat);  WLR (D) 349
“A party that referred the court to a term of an offer made by it pursuant to CPR Pt 36 waived its without prejudice privilege and could not prevent the remaining terms of the offer from being referred to the court.”
WLR Daily, 23rd November 2012
“A person threatened another with proceedings for infringement of a registered trade mark within section 21 of the Trade Marks Act 1994 if he stated or implied that he would bring a claim if the other did not agree to the terms he proposed. The test to be applied was whether a reasonable recipient would understand the statements made to indicate nor merely an assertion of legal rights but an intention to enforce those rights.”
WLR Daily, 24th May 2011
Please note that once a case has been fully reported in one of the ICLR series the corresponding WLR Daily summary is removed.
“Facts communicated between parties in the course of ‘without prejudice’ negotiations which, but for the ‘without prejudice’ rule, would be admissible as part of the factual matrix or surrounding circumstances as an aid to construction of the resulting agreement, were admissible in evidence, as an exception to the rule, in a subsequent dispute between the parties as to the proper meaning of a clause in the agreement.”
WLR Daily, 29th October 2010
Please note once a case has been fully reported in one of the ICLR series the corresponding WLR Daily summary is removed.