Judge considers without prejudice privilege issues
The main issue in this case was whether a meeting between the parties was "without prejudice". The judge decided, on the evidence, that the meeting had not been expressly agreed to be without prejudice. However, he went on to find that both the meeting and the communications between the parties after the meeting were without prejudice because they were negotiations aimed at settlement.
It made no difference that one of the parties did not think that the meeting was conducted on a without prejudice basis. Negotiations genuinely aimed at settlement will be considered without prejudice (unless expressly agreed otherwise) as it is in the public interest that such negotiations occur and parties should be free to have candid discussions.
This decision follows the Court of Appeal ruling in Muller v Lindsey & Mortimer [1994] which held that, even if neither party wanted the privilege to apply, it can still apply simply by virtue of the fact that the parties are negotiating (in the absence of express agreement to the contrary).
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