The principles of the ‘without prejudice’ rule have long been established and accepted in English law as a rule governing the admissibility of evidence. The rule is founded partly in public policy and partly in the agreement of the parties. Its primary aim is to encourage litigants to settle their differences rather than litigate them to a finish. The protection of admissions against interest is the most important practical effect of the rule.
The Court of Appeal has in several recent cases refused to order the disclosure of without prejudice correspondence even when the request for disclosure was to enable the court to make an appropriate costs order concerning a mediation between the parties. In Unilever v Proctor & Gamble [2000] the Court of Appeal found that without prejudice was a rule of “wide and compelling effect” and this was particularly the case where the without prejudice communications in question “consist not of letters or other written documents but of wide-ranging unscripted discussions during a meeting which may have lasted several hours”. The court, however, identified various situations where the without prejudice rule does not prevent the admission of evidence into what one or both parties to a litigation said or wrote. Two are relevant in this context. The first is when the issue is whether without prejudice communications have resulted in a concluded settlement; the second is where, even if there is no concluded settlement, a clear statement made by one party to the negotiations and on which the other party is intended to and does in fact act, may give rise to an estoppel.
