The importance of the ‘without prejudice’ rule
This case was heard by Mr R Kaye QC sitting as a Deputy High Court Judge in the Chancery Division. It was an application to expunge certain matters from an expert report which referred to material which was obtained ‘without prejudice’.
The parties had engaged in litigation in October 2000 in respect of breach of warranties and/or misrepresentation arising out of the purchase of a business. In November 2001 the parties, having instructed experts, went to mediation, and in anticipation of that mediation the experts interviewed certain employees of the business concerned. The interviews were expressly agreed to be ‘without prejudice’.
When mediation failed, the defendant served a disclosure list which included some of the ‘without prejudice’ material. The claimant’s subsequent expert report made reference to the ‘without prejudice’ interview notes.
Whether the interview notes could be relied upon by the claimants; whether their inclusion in the disclosure list had negated the agreement that they were ‘without prejudice’.
The deputy judge held that the notes were not admissible. The general approach was that ‘without prejudice’ matters were inadmissible, largely for public policy reasons, but also due to the agreement between the parties as to their inadmissibility. Their ‘without prejudice’ status could only be lost in clear and unequivocal circumstances. The test was whether it was fair and just, in all the circumstances, to admit the material. In this case it was not, so the material was ruled inadmissible and expunged from the expert report.
This case emphasises the importance of the ‘without prejudice’ rule.
The expert witness ought not to have included in his report reference to without prejudice material and hence it was ordered to be expunged
from his report.