Although the phrase ‘without prejudice’ is often invoked in practice, the circumstances in which parties have been able to use it to exclude evidence have not been as clearly defined by the courts as might be expected. Two recent cases have considered the rule and its legal basis, clarifying the circumstances in which it may apply. In addition, for the first time the courts have provided some real guidance on the time from which the privilege may begin to apply.
In Framlington Group v Axa Framlington Group & another [2007], the Court of Appeal expressed doubts about the contractual basis of the rule by noting that it was of limited application and “doubtful legal respectability”. The court chose to focus on the public policy basis underlying the ‘without prejudice’ rule, described by Lord Griffiths in Rush v Tompkins [1989] as being “the public policy of encouraging litigants to settle their differences rather than litigate them to a finish”.
