(Chancery Division; Arnold J; 19 November 2009)
The woman's case was that the property was owned according to terms set out in a draft deed of co-ownership, albeit that the deed had never been executed; the man's case was that it had been mutually understood that, even though the woman had contributed the bulk of the purchase price, the couple would share the property equally. The woman sought to introduce into evidence a letter from the man to her, which was marked 'without prejudice' and which had been a response to a letter from her to him, also marked 'without prejudice'. The man's letter made it clear that he accepted that his beneficial interest in the property had been only 7% at the time the property was purchased, but that it had risen to 12% under the terms of the draft deed of co-ownership. The judge considered that the letter was admissible, firstly because it was not truly a without prejudice communication, and secondly because even as a without prejudice communication it would have been admissible on the ground of unambiguous impropriety. The man appealed.
The man's appeal was allowed. It was not correct to dissect communication between parties into parts unless it was concerned with clearly distinct subjects. The letter was a negotiating document protected by the without prejudice rule. It was not necessary for a communication to contain a concession or offer of compromise to be a negotiating document; it was sufficient that the document evinced a genuine desire to negotiate a settlement of an actual or potential dispute. Without prejudice did not mean 'without prejudice to my open position', it meant 'without prejudice to my position in any subsequent proceedings. While there was an apparent inconsistency between statements in the man's letter and the man's pleaded case, it was not sufficient to establish unambiguous impropriety; there was a serious risk of perjury, but that was not enough to justify admitting a without prejudice document.