Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
| TIM BROWN
(as trustee in bankruptcy of the estate of Jane Elizabeth Rice)
|- and -
2. SMITA PATEL
Mr Duncan Macpherson (instructed by Barnes & Partners) for the Second Respondent
Mr Michel Kallipetis QC (instructed by Mr Michael Lind) for the Intervener
Hearing dates : 26 and 27 February 2007
Crown Copyright ©
Mr Stuart Isaacs QC :
The without prejudice rule
" operates as an exception to the general rule on admissions (which can itself be regarded as an exception to the rule against hearsay) that the statement or conduct of a party is always admissible against him to prove any fact which is thereby expressly or impliedly asserted or admitted. The public policy aspect of the rule is not in my judgment concerned with the admissibility of statements which are relevant otherwise than as admissions, i.e. independently of the truth of the facts alleged to have been admitted. Many of the alleged exceptions to the rule will be found on analysis to be cases in which the relevance of the communication lies not in the truth of any fact which it asserts or admits, but simply in the fact that it was made. Thus, when the issue is whether without prejudice letters have resulted in an agreed settlement, the correspondence is admissible because the relevance of the letters has nothing to do with the truth of any facts which the writers may have expressly or impliedly admitted. They are relevant because they contain the offer and acceptance forming a contract which has replaced the cause of action previously in dispute. Indeed, I think that the only case in which the rule has been held to preclude the use of without prejudice communications, otherwise than as admissions, is in the rule that an offer may not be used on the question of costs; a rule which has been held to rest purely upon convention and not upon public policy. "
Mediation and the without prejudice rule
" 'without prejudice' negotiations, including offers and counter-offers, whether there should be an ADR, what form an ADR should take or what actually happens in an ADR (e.g. one side being recalcitrant) are all in principle relevant. Yet the 'without prejudice' rule apparently makes them inadmissible on the question of costs."
"7.1 The mediator and the Parties undertake to one another that, save as may be otherwise agreed in writing by the Parties or their respective solicitors, they will maintain confidentiality in respect of all statements and matters arising in the mediation .
7.2 The parties recognise that the mediation is for the purpose of attempting to achieve a negotiated settlement and as such all information provided during the mediation is without prejudice and will be inadmissible in any litigation or arbitration of the dispute.
7.7 All documents, statements, information and other material produced prior to or during the course of the mediation, save to the extent [of] those documents disclosed already and in the domain of the litigation, whether in writing or orally, shall be held in confidence by the Parties and shall be used solely for the purposes of the mediation."
The events of 16/17 February 2006
"12. I asked Mr and Mrs Patel if there was any common ground between us and, if not, I asked if the offers from both sides remained open to 12.00 noon and they confirmed that they did. Both Mr and Mrs Patel agreed with this.
13. The Mediator then asked Mr and Mrs Patel if it would be helpful for him to write out Mr and Mrs Patel's offer for them. They agreed that it would and a copy of each of the offers was made and given to each party.
14. Both Mr and Mrs Patel and I then expressed our hopes that a deal could come from these offers and they were happy to consider the offers overnight.
15. At the end of the meeting, Mr and Mrs Patel both shook my hand .
16. I asked the Mediator if I could give Mr Patel my business card with my telephone number on it, which he agreed I could. I handed my business card to Mr Patel, who agreed that he would phone me in the morning with any further thoughts that he had had overnight."
" Mr and Mrs Patel offer the same except the figure of £60,000 to £55,000 & the period is 28 not 14 days. This offer is open for acceptance until 12 noon on Friday 17 Feb'y 2006."
The morning of 17 February
The afternoon of 17 February
Was there a concluded settlement?