Without prejudice communications
‘The exception to the rule governing without prejudice communications has at its heart an abuse of a privileged occasion. Moreover, it is an exemption which will rarely be found to be applicable. Thus, for instance: (a) In Forster v. Friedland  CAT 1052 Hoffmann LJ (as he then was) said that the value of the without prejudice rule would be seriously impaired if its protection could be removed for anything less than unambiguous impropriety; (b) In Fazil-Alizadeh v. Nikbin  CAT 205 Simon Browne LJ said: "There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule in only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected it will all too readily become eroded." (c) In Unilever v. Proctor & Gamble  1 WLR 2436 Robert Walker LJ referred on a number of occasions in his judgment to the abuse of privilege and the need for something "oppressive, dishonest or dishonourable" in the defendant's conduct at the without prejudice meeting in order for the without prejudice protection to fall away."’ Per His Honour Judge Peter Coulson QC in Aird & Anor v Prime Meridian Ltd  EWHC 2338 (TCC).
4th Edition » | Chapter 10