”. As a general rule, in any subsequent dispute concerning the same subject-matter, the prejudice rule renders inadmissible proof of confessions made in the context of a serious attempt at an agreement. It goes without saying that confessions made with a view to reaching a settlement with another party to the same dispute are also inadmissible, whether or not an agreement has been concluded with that party. Evidence of a bias-free procedure could be provided to declare delays in the continuation of the dispute or obvious consent, for example to defend a referral request for failure to prosecute.15 The harm rule prevents statements made for the purpose of resolving an existing dispute from being brought before the courts. But if there is a long period of time after the failure of the negotiations and the beginning of the legal dispute, does that prevent the parties from claiming that the negotiations were impartial, because at that time it cannot be said that there was an ”existing dispute”? How close should the failed negotiations be to the beginning of the process? ”Unbiased” or ”WP” is a phrase that lawyers and non-lawyers use regularly. It is not uncommon for it to be used in the wrong context or not to be used when it should have been used. District courts may choose to reject them without prejudice for a variety of reasons. A court may allow a plaintiff to voluntarily withdraw from the action by dismissing it under Rule 41(a), without prejudice to the fact that the plaintiff would be in distress as a result of the action being continued. In addition, under rule 37 (b) (2), a court may revoke a party acting in bad faith without prejudice to the penalty. For example, in U.S. v. National Broadcasting Co., Inc., a California district court applied Rule 37(b)(2) to dismiss a government antitrust action without prejudice because the government had failed to comply with court orders, but the government`s non-compliance had not affected the defendant.
A communication (written or oral1) must be made in the context of genuine settlement negotiations in order to be ”impartial”. It is not enough to label a document as ”without prejudice.” The circumstances surrounding it must be considered in order to decide whether protection should apply. ”Impartial is not a label that can be used indiscriminately to release an act from its normal legal consequences when there is no real dispute or negotiation. 2 The purpose of the rule without prejudice is to encourage the parties to the dispute to seek an agreement by allowing them and their legal advisers to express themselves freely and to make concessions, knowing that their words cannot be used against them later. Court, if the negotiations do not lead to an agreement. However, the protection is not absolute and there are exceptions. Hey, what would happen if all my charges were dropped, he told me not to catch myself in his courtroom, but I still owe fines and court fees, do I still have to pay them In any discussions or meetings if any, it is better to mention it from the beginning – see the next section also about this – and get confirmation from the other party, they accept the communication without prejudice. The reverse is also true – the mere use of the ”without prejudice” label does not guarantee confidentiality – again, it is the content and intent of the document/discussion that will be decisive. Confidential interactions (written and oral) between parties who are genuinely trying to resolve a dispute are often marked as ”without prejudice” (WP). It is actually an abbreviation for the statement: ”Although I am trying to reach an agreement with you, I do not admit or admit or waive any argument or right – therefore, my offers to enter into a trade agreement are without prejudice to my main position that I am right and you are wrong.” Suppose that A, B and C are all parties to the same dispute, with A being the plaintiff and B and C being the co-respondents. If A agrees with B but pursues the claim against C, can the impartial communication leading to the comparison between A and B be used as evidence in the ongoing dispute between A and C? The answer lies in the House of Lords decision in Rush & Tompkins -v- GLC17.
Rush & Tompkins (a contracting company) was involved in a dispute with the GLC and a second defendant and eventually reached an agreement with the GLC through unbiased negotiations. The House of Lords ruled that the content of these trials could not be disclosed to the second accused. To pretend otherwise would discourage parties to multi-party disputes from attempting even a genuine settlement. Lord Griffiths explained: ”We give an overview of the `No Prejudice` rule and then look at the exceptions that apply to the `Without Prejudice` rule after the High Court applied the misrepresentation or fraud exception to the no-prejudice rule in the recent Berkeley Square Holdings v Lancer Property Assets Management Ltd case. However, the courts treat the veil without prejudice with some respect, and the principle clearly stated in recent Court of Appeal decisions12 is that a ”manifest insufficiency” must be demonstrated in order to set it aside. This is behaviour that is in some ways ”oppressive, dishonest or dishonourable”.13 Courts recognize that negotiation in practice often involves a certain degree of posture and accept that in impartial discussions, a party may adopt a position inconsistent with its open position. However, there is a line that needs to be drawn, and using the label without prejudice will not give a party ”carte blanche” to be dishonest. ”Open” communication is the opposite of impartial communication and can be used and used in court. There are certain exceptions to the rule without prejudice: ”The rule is not absolute and material without prejudice can be invoked for various reasons if the justice of the case so requires.” 8 Allegedly impartial communications which, if presented, would demonstrate that a party is relying on manifestly false facts or made false statements are not protected.
If the words used show that the party is pursuing a dishonest case or committing a criminal or fraudulent act, the communication is admissible as evidence.11 The crucial point is to know that this WP ”protection” is potentially available in certain circumstances and to know what it means so that you can protect your position during negotiations….