Without Prejudice letters - adducing as evidence

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Without Prejudice letters - adducing as evidence

    Letters marked as “Without Prejudice” or “Without Prejudice save as to costs” are not generally allowed to be adduced as evidence in court – save for the assessment of costs.

    Now I am aware that simply marking a letter “Without Prejudice” or “Without Prejudice save as to costs” does NOT mean that it cannot be adduced in as evidence at trial. There are some instances where a party can say that the letters should be adduced because they are material to the trial etc.

    Can anyone tell me in what situations can a party admit the other side’s W.P. letters in evidence at trial?

    #2
    I can. Unfortunately the answer is extremely complex.

    some examples are where t hides a fraud, bribe, blackmail or acts of impropriety. Therefore if your opponent writes to you on a WP basis saying that unless you agree to settle the case they will send the pictures they have of you doing X,Y,Z then that is blackmail and as such cannot be hidden away. Another example would be if your opponent advances a case in open correspondence and then in a WP letter says they are lying and actually the opposite is true, the law will not allow someone to advance an untrue case.

    The above are broad examples and do not always succeed. What looks to you to be a clear statement example of a threat, an be taken as mere bluff and posturing by a Judge. These questions have to be referred to a separate judge so that their decision is isolated and they are not the judge at the final hearing, so they are not aware of any excluded evidence.
    Mark Hessel

    Any comments I post are just that, comments. Every situation is unique and so you should not apply any comments I make to your situation, no matter how close they may appear to match your circumstances.

    Comment


      #3
      Question on Without Prejudice

      Hi there, I have a quick question about what "Without Prejudice" actually means.

      I have a case coming up where my landlord has claimed £25 for damages to the remote control for the carpark. The remote control wasnt working when we moved in, and he offered us £25 to get it fixed a week into our tenancy. We never took up this offer and the remote remained broked for the duration of the tenancy (we didnt have a car so never used it). He is now saying it was working and we broke it.

      As evidence to show that the remote was broken at the start of the tenancy, am I able to mention this offer from the LL to fix the remote control? Or will this be seen as breaking "Without Prejudice" rules and mean I'll risk a retrial and have to bare the costs of the trial?

      I know this is only for a small amount, but its one of 3 different items where the same defence applies, so it would cover all. This is just the easiest example to explain.

      All help very very welcome!

      Comment


        #4
        does the offer say 'without prejudice' on it?

        Comment


          #5
          Without prejudice communications are meant to promote and preserve openess between the parties and thereby promote settlement, and are therefore not supposed to be disclosed at trial.


          (1) WP privilege will, somewhat surprisingly, not usually be lost if a party pleads a case or gives evidence that is inconsistent with the facts or evidence disclosed in WP correspondence. Nevertheless, it is possible for WP correspondence to be disclosed, but only in exceptional and clear cases where the WP privilege is obviously being abused or used as a cloak for perjury (see, Savings and Investment Bank v. Fincken [2004]).

          However,

          (2) WP privilege only covers communications and negotiations which are undertaken with a genuine view to settlement of an extant dispute. If the communications were not pursuant to an extant dispute, the WP rule does not apply to them; so, if the original letter from the LL offering £25 was merely a general communication regarding matters arising from the check in procedure, it is probably not privileged.

          (3) If your hearing is on the Small Claims track, the judge is unlikely to apply the full rigour of the rules of evidence.
          Health Warning


          I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

          All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

          Comment


            #6
            Originally posted by fthl View Post
            does the offer say 'without prejudice' on it?
            No it doesnt...

            Comment


              #7
              What happens if I raise it and the Judge see's otherwise? Will he cancel the trial?

              Thanks again.

              Comment


                #8
                Originally posted by awt19 View Post
                No it doesnt...
                It may or may not be privileged, depending on the context.

                If it was a letter sent in the course of negotiations with a view to settling or avoiding litigation, even if it is not expressed to be WP, it will probably be privileged, whereas if it was sent under different circumstances, it will not.
                Health Warning


                I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                Comment


                  #9
                  Originally posted by agent46 View Post
                  It may or may not be privileged, depending on the context.

                  If it was a letter sent in the course of negotiations with a view to settling or avoiding litigation, even if it is not expressed to be WP, it will probably be privileged, whereas if it was sent under different circumstances, it will not.
                  So given it was only sent at the start of the tenancy to rectify the initial problem, I guess its not a problem.

                  What happens if I present the evidence and the judge does consider it WP? Will he abandon the trial, or just ignor it?

                  Comment


                    #10
                    As a litigant in person you can probably send it to the court and get away with it.

                    Genuine offers can be without prejudice, even though they are not marked as such.

                    IMO you are entitled to treat it as an open letter, and it is then for the LL to persuade the court that it should be without prejudice - by then the damage is done to LL's case.
                    PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

                    Comment


                      #11
                      "without predjudice"

                      We have agreed with the LL to pay a proportion of rent arrears in full and final setlement. The LL has written "without predjudice" on the top of the agreement letter. Can anyone tell me what this means please?

                      Comment


                        #12
                        Its added to the top of letters so the receiving party cant use the letter in court..... though havent seen it often enough to know if it actually makes the letter inadminisable

                        Comment


                          #13
                          Without prejudice is a form of privilege, meaning that a party can claim that a document is not admissible in evidence on the basis that it was made ion the sprit of out of court settlement and therefore should not be used as a weapon against him as evidence of admission of liability etc.

                          However, whether or not a document is "without prejudice" depends on its contents, not how it is labelled. People prefer to to label them such all the same, for peace of mind I guess.

                          Comment


                            #14
                            There is an explanation here: http://www.andrewjackson.co.uk/legal...our-interests/

                            Conveyancers never use the phrase without referring to a litigator.

                            Comment


                              #15
                              I am not a legal expert but, I understand that when someone puts "without prejudice" on a document all they are saying is that the content is not an admission of any kind, whether this be to liability or to amount claimed.

                              So, if you are claiming £100 of someone and they make a "without prejudice" offer of £50, the fact that they are making an offer does not mean that they agree that you have any right to make a claim or that the claim that you are making is reasonable or that they will stick to the offer in any future proceedings, such as at a court, if it is not accepted.

                              I also understand that for such a document not to be admissible in court the sender has to mark it accordingly, it has to state that it is not to be so used by the recipient.

                              Hopefuly a suitably qualified person can come along and confirm excatly what it means?

                              pm
                              Last edited by property mongrel; 09-07-2010, 17:16 PM. Reason: to add that the link posted by Lawcruncher while i was typing my reply is just what I was hoping for.
                              Before acting on forum advice, you may wish to consult an expert, someone who has all the relevant facts, and who accepts liability for their advice.

                              Comment

                              Latest Activity

                              Collapse

                              • Reply to Flat rental bathroom query
                                by Landyman
                                Are you saying that the toilet and basin are out in the open, adjacent to the kitchen? Or are they in a separate room?

                                Does the room have a window? Or a fan ventilator?

                                It's had to visualise exactly what you mean. Could you sketch a simple floorplan and upload that here p...
                                16-01-2022, 23:47 PM
                              • Flat rental bathroom query
                                by NewGuyOne
                                Hello,

                                A rented flat with a toilet (of course) and basin next to the kitchen, and a bedroom with a quite small en suite - shower/basin/rail for towel ... Is this acceptable in a flat - with no additional separate bathroom?

                                Flat consists of 1 bedroom en suite, hallway, lounge,...
                                16-01-2022, 20:13 PM
                              • Reply to Problems with tenant getting work done and not paying me rent
                                by axil23
                                Thank you Lawcruncher.

                                Just so I am not reading the lease wrong. Executed as a deed means that it has to say that and be witnessed by a 3rd party right?...
                                16-01-2022, 23:23 PM
                              • Problems with tenant getting work done and not paying me rent
                                by axil23
                                I have rented my house to a {name removed} who use it to house Asylum seekers from a govt contract. In June the flat roof developed a leak and they asked me to fix it which I did the next day. 6 months later I get a bill for £1900 for scaffolding, asbestos survey, party wall agreement & for some...
                                13-01-2022, 12:05 PM
                              • surrender of lease charges
                                by jshire
                                Hi,
                                I'm trying to assist a family member who is in the process of surrendering a lease on a shared flat (all tenants moving out). The landlord agreed as the reasons were reasonable. He's sent an email stating that there will be costs that the tenants have to meet, charged by the letting agent...
                                16-01-2022, 20:49 PM
                              • Reply to Gas certificate fail
                                by MdeB
                                But if you had a valid certificate when the tenancy started but failed to give it to the tenant, then I believe that providing them with a current certificate before serving S21 will be OK....
                                16-01-2022, 20:30 PM
                              • Gas certificate fail
                                by ReginaPhalangi
                                We've been renting out our property since 2017 and now have given notice to our tenants to leave. However we have just realised that we have failed to get a gas certificate during their tenancy. Is it possible to get the gas certificate now? Would we need to give notice again after we issue the gas...
                                15-01-2022, 20:05 PM
                              • Reply to No Tenancy agreement
                                by MdeB
                                There are a number (of the order of 20) of grounds under which possession can be sought. See the Housing Act 1988.



                                The claim is for the period for which they were paying rent whilst there was no required licence in place, up to a maximum of 12 months. Getting a licence ends...
                                16-01-2022, 19:32 PM
                              • Reply to No Tenancy agreement
                                by MdeB
                                That depends on when the tenancy started.


                                Or, possibly, the one in place when it is given to the tenant. The regulations are ambiguous...
                                16-01-2022, 19:18 PM
                              • Reply to Wales: New Legislation – your roles and responsibilities
                                by steaming
                                4. Antisocial behaviour…..a fair and consistent approach to everyone. No. 4 is then not mentioned in the extended information (click link). Surely this needs explaining in detail or, maybe, they haven’t actually thought further that the nine words used. No surprise.
                                16-01-2022, 19:17 PM
                              Working...
                              X