| Gareth John Davies Bachelor of Law (Honours), Master of Laws Barrister and Solicitor and Family Law Mediator (rtd.) |
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Laws of General Application
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Note: It is
not intended that the cases cited below are in any way exhaustive of the
subjects they cover. The cases are provided because they either cover a
point of importance or a particular point of interest. For complete coverage
on cases and materials dealing with documents and statements made 'without
prejudice', consult appropriate text books or articles authored by experts
in the field or consult with a lawyer.
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definition (1) |
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protection from disclosure (4) |
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acceptance of offer (1) |
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marking "without prejudice" not enough (2) |
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notice of bankruptcy (1) |
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where not marked "without prejudice" (1) |
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where there is prejudice or illegal act (6) |
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Scottish law (1) |
(1) The Attorney General of Canada v. Forsberg, 96.12.20, Vancouver #C952985, paragraphs 3, 4 and 9, Lowry, J. (S.C.B.C.) adopting paragraph 213 of Halsbury's Laws of England (4th ed.) vol. 17:
The contents of a communication made "without prejudice" are admissible when there has been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement has been reached, and the fact that such communications have been made (though not their contents) is admissible to show that negotiations have taken place, but they are not otherwise admissible. Thus they cannot be used as admissions, or as acknowledgments to preserve a debt from becoming statute-barred, or, normally, for the purpose of deciding the question of costs, or to show malice, although it has been held that they may be admitted to prove matters not connected with the merits of the dispute. The consent of both parties to the dispute is required for the privilege to be waived, even if there has been only one communication.
Protection from disclosure (4)
(1) The Law of Evidence in Canada, Sopinka, Lederman & Bryant, Butterworths, Toronto and Vancouver, 1992, pages 719-734.
"It has long been recognized as a policy interest worth fostering that parties be encouraged to resolve their private disputes without recourse to litigation, or if an action has been commenced, encouraged to effect a compromise without a resort to trial. In furthering these objectives the courts have protected from disclosure communications, whether written or oral, made with a view to reconciliation or settlement."
Note: see also "Without Prejudice" by David Vaver, 9 U.B.C.L. Rev, 1974. p. 85.
(2) McLeod v. Pearson, [1931] 4 D.L.R. 673, pages 679-80, [1931] 3 W.W.R. 4 at page 11 (Alta. S.C.), citing 13 Hals., pages 557-59, paragraph 761. "Where letters written 'Without Prejudice' are found to be protected from disclosure, subsequent letters on the same subject matter are also protected."
(3) Waxman v. Texaco, (1968) 69 D.L.R. (2d) 295, [1968] 1 O.R. 642, affirmed 69 D.L.R. (2d) 543, [1968] 2 O.R. 452 (Ont. C.A.). Where A writes to B a letter marked "without prejudice" and C then sues A, the letter remains protected from disclosure.
(4) Farrell v. Tisdale, (1987) 16 B.C.L.R. (2d) 230, 241, Taggart J.A. (B.C.C.A.).
"I can think of no legal basis, other than waiver of privilege, for admitting as evidence letters which are privileged even if they are admitted for the limited purpose of ascertaining whether there was confirmation of a cause of action. The documents are either privileged or not, and if privileged, cannot be used for or against either party. "
(1) Latimer v. Park, (1911) 2 O.W.N. 1399 (Ont. C.A.). Where a party accepts an offer of settlement made on a without prejudice basis, the acceptance removes the privilege attached by the words "without prejudice".
Marking "without prejudice" not enough (2)
(1) Crawford v. Roset and Cornale, (1992) 69 B.C.L.R. (2d) 349; affirmed (1992) 71 B.C.L.R. (2d) 90 (S.C.B.C.).
(a) The authorities are clear that simply marking a letter with these magic words: "Without Prejudice." does not necessarily confer any privilege on the contents. "The letter must in fact contain some negotiations or terms of settlement". Where a letter does not, it can be relied on by the recipient against the interests of the sender.
(b) The actual intention of the framer of a document is irrelevant, as is the actual understanding of the contents by the recipient. What is relevant is set out in the judgment of Aikins J.A., in Podovinikoffv. Montgomery, (1984), 58 B.C.L.R. 204, 30 M.V.R. 19, 46 C.P.C. 77, 10 C.C.L.I. 169, 14 D.L.R. (4th) 716 (B.C.C.A.).
.... as a general principle the question is not what the writer of the document intended or meant but what a reasonable man reading the document would understand it to mean.
(2) Schetky v. Cochrane, [1918] 1 W.W.R. 821, Martin J.A. (B.C.C.A.) quoting from Re: Daintrey; Ex parte Holt, [1893] 2 Q.B. 116 (Div. Ct.):
" 'In our opinion the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation...' This lays it down that before the privilege arises two conditions must exist, viz.: (a) a dispute or negotiation between two or more parties; and (b) in which terms are offered."
Referred to in Belanger v. Gilbert (1984), 58 B.C.L.R. 191, 192, 193, MacDonald, J.A. (B.C.C.A.) and Rogic v. Ginn, Ginn and Mercedes Benz Canada, 96.12.20, Vancouver #B944404 (S.C.B.C.).
(1) Re Daintrey [1891-4] All E.R. Rep. 209 (Eng.). Notice of an act of bankruptcy could not be given "without prejudice" even if accompanied by an offer of settlement. One cannot communicate on a without prejudice basis if the communication may prejudicially affect the position of the recipient.
Where not marked "without prejudice"
(1) Middelkamp v. Fraser Valley Real Estate Board, (1992) 71 B.C.L.R. (2d) 276 (B.C.C.A.) at 276 adopting Rush Tompkins Ltd. v. Greater London Council, [1988] 3 All E.R. 737 (Eng. H.L.) per Lord Griffiths at 739-40 (quoted at 290). Letters, although not marked "without prejudice", may be treated as if they were if they constitute communication to which a common law privilege attaches.
Where there is prejudice or illegal act (6)
(1) Greenwood v. Fitz, (1961) 29 D. L. R. (2d) 260 and 268 to 269 (B.C.C.A.). Any communication sent on a without prejudice basis will not attract the privilege of non disclosure if it contains a threat, veiled or otherwise, to do an illegal act or to harm the other party.
(2) Underwood v. Cox, (1912) 4 D.L.R. 66, 26 O.L.R. 303 (Ont. Div. Court). The communication will be admissible to prove duress, undue influence or coercion. For example, the plaintiff, while he was in the course of contesting his father's will, wrote a letter to his sister threatening to reveal a personal family matter which was embarrassing to the sister. The sister subsequently signed an agreement changing the distribution of the father's property under the will to a distribution which was much more favourable to the plaintiff. On appeal, this agreement was held to be unenforceable because it was obtained by use of threats. The letter containing the threats was admitted because
"This rule, founded on public policy, cannot be used as a cloak to cover and protect a communication such as the letter in question, which contains no offer of compromise, but a dishonourable threat" [4 D.L.R. 82, 26 O.L.R. 323, per Middleton J.]
(3) McLeod v. Pearson, [1931] 4 D.L.R. 679, [1931] 3 W.W.R. 11 citing 13 Hals., pages 557-59, paragraph 761(Alta. S.C.); Re Daintrey, Ex parte Holt, [I893] 2 Q.B. 116, approved in Sherren v. Boudreau, (1973) 42 D.L.R. (3d) 627, 6 N.B.R. (2d) 701 (S.C. Appeal Div.).
A "without prejudice" communication will not be protected from disclosure if its contents may prejudice the party to whom it is made
(4) Advocates Quarterly, 1984/85, Volume 5, "Without Prejudice" Correspondence-When Is It Appropriate? Cappellaci.
(a) "If one of the parties to a dispute offers on a "without prejudice" basis to settle for an amount less favourable than the amount he or she believes a court would award or offers to concede an issue (such as child custody or a particular visitation schedule), such communication will be protected from disclosure in any subsequent court hearing. In such a communication, facts may be conceded which are not necessarily true in an attempt to effect the settlement and avoid the expense of litigating - the communication cannot later be admitted as evidence against the party making it." [pages 491-496]
(b) "Summary" - When deciding whether or not a letter is properly sent without prejudice the following questions should be asked:
(1) Is there a dispute in existence? and
(2) Is the letter written to propose a settlement or to state the writer's views with respect to the matter in dispute?
If the answer to both of these questions is yes then the case law suggests that a letter may properly be marked without prejudice and in any subsequent correspondence on the same subject-matter (assuming such subsequent correspondence is also written for one of the two reasons stated in Number 2 above) will be inadmissible unless: (a) the letter contains a threat; or (b) the letter contains statements which by their very nature may prejudice the recipient of the letter. [page 496]
(5) Ex parte Holt, [1893] 2 Q.B. 116 (Eng.). Evidence may not be given when it has been communicated between the parties orally or in writing, either directly or through counsel unless:
(a) the negotiations "without prejudice" have terminated in an agreement, or
(b) the without prejudice statement prejudices or tends to prejudice the client and has elected not to treat the statement as "without prejudice".
(6) The Examination of Witnesses in Court, by Frederic John Wrottesley of the Inner Temple, Barrister-At-Law, London, Sweet & Maxwell, Ltd., Toronto, The Carswell Co., Ltd.,1910, at page 168, para 8. "Without Prejudice.":
"You may not give evidence of what has been said or written between the parties "without prejudice."
Exceptions- (a) Where the negotiations "without prejudice" have terminated in an agreement; and (b) Where the writing or statement "without prejudice" in fact tends to prejudice your client, and he has therefore elected not to treat the writing or statement as "without prejudice": Ex parte Holt, [I893] 2 Q.B. 116.
(1) Daks Simpson Group plc v Hermannus Kuiper, [1994] Scottish Law Times, 689 Lord Sutherland (Outer House of the Court of Session, Edinburgh).
(a) 'Without prejudice' in my view means without prejudice to the whole rights and pleas of the person making the statement. If, however, someone makes a clear and unequivocal admission or statement of fact, it is difficult to see what rights or pleas could be attached to such a statement or admission other perhaps than to deny the truth of the admission which was made.
(b) I see no objection, in principle, to a clear admission being used in subsequent proceedings, even though the communication in which it appears is stated to be without prejudice.
(c) It therefore follows that if a party to a litigation or prospective litigation writes to his opponent to the effect that he denies any liability to make payment but to avoid litigation is prepared to pay £X,000, and then marks the letter 'without prejudice' the letter will not be looked at by the judge in any subsequent litigation. Indeed, there is a strong argument that even if the words 'without prejudice' were omitted the letter would still be protected. On the other hand, if a party writes to its opponent and states that it admits being due the sum of £X,000, a statement that the letter is 'without prejudice' will not prevent it being produced in a subsequent or current litigation. In order to protect such an admission a much greater qualification to the terms of the letter will be required.
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