‘Without prejudice’

Framlington Group v Barnetson Ltd [2007] All ER (D) 429 (May); CA NLJ 1 June

The purpose of the ‘without prejudice’ rule is to encourage the settlement of differences without recourse to, or continuation of, litigation. A dispute may engage the rule even though litigation has not yet begun. The crucial consideration is whether, in the course of negotiations, the parties contemplated, or might reasonably have contemplated, litigation if they could not agree. The critical question for the court is where to draw the line between serving the public policy interest of encouraging the resolution of disputes and wrongly preventing one party, when it comes to litigation, from putting his case at its best.