House Of Lords Reinforces 'Without Prejudice' Protection

The Ofulue & Anor v Bossert case considered whether a

without prejudice letter sent in prior proceedings could be brought

before the court in subsequent proceedings between the parties.

It is well-known that without prejudice correspondence in the

proceedings to which it relates is inadmissible. The House of Lords

held that such correspondence is also inadmissible in subsequent

proceedings between the same parties.

The House of Lords reviewed the principles behind attributing

privilege to certain documents and correspondence. The public

policy justification for without prejudice privilege is well

established and is set out in Cutts v Head [1984] Ch.290, 306 as

resting on the desirability of preventing statements or offers made

in the course of negotiations for settlement being brought before

the court as admissions of liability.

Where a letter is written "without prejudice" during

negotiations with a view to reaching a compromise, it will attract

litigation privilege unless the other party can show that there is

a good reason for such privilege not to subsist.

It is not appropriate or practical when considering whether

"without prejudice" communications are admissible to try

to weed out the parts that deserve protection and the parts that do

not.

Whilst the decision strengthens the 'without prejudice'

rule, it also acknowledged that it is not absolute. It cannot, for

example, be used to hide perjury, blackmail or other unambiguous

impropriety.

The case concerned an appeal against an adverse possession

order. The defence in the original proceedings was served in 1990,

admitting the registered freeholder's title but denying their

right to possession. In a without prejudice letter written the

following year, the occupier offered to buy the property. The first

proceedings were struck out in 2002.

In 2003, fresh possession proceedings were issued and a defence

of adverse possession was then entered. The registered freeholder

relied on s.29 of the Limitation Act 1980, arguing that the running

of time for adverse possession had been interrupted by the

acknowledgment of title in the earlier proceedings and in the

without prejudice offer to buy the property.

One of the issues the court had to consider was the extent to

which it was permissible for one party to rely on a statement made

by another party in without prejudice correspondence written with a

view to settling earlier proceedings between the same parties.

The majority of the court held such...