“The value of the without prejudice rule would be seriously impaired if its protection could be removed from anything less than unambiguous impropriety. The rule is designed to encourage parties to express themselves freely and without inhibition. I think it is quite wrong for the tape recorded words of a layman. who has used colourful or even exaggerated language, to be picked over in order to support an argument that he intends to raise defences which he does not really believe to be true.”
“One party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other “unambiguous impropriety”.”
“Contrary to your emails of yesterday, our client neither said nor intended that committal proceedings would be issued or allegations of perjury made if their offer was not accepted. Contrary to the suggestion in your email, our client did not make, and to be clear does not make, any threats as to what will happen if the parties do not reach a settlement agreement. Their position as to possible future procedural steps in the event that a settlement is not achieved is, however, reserved.”
“Every person involved in the Mediation: 4.1 will keep confidential all information arising out of or in connection with the Mediation, including the facts and terms of any settlement, but not including the fact that the Mediation is to take place or has taken place or where disclosure is required by law or to implement or to enforce terms of settlement or to notify their insurers, insurance brokers and/or accountants; and 4.2 acknowledges that all such information passing between the parties, the mediator and/or CEDR, however communicated, is agreed to be without prejudice to any party’s legal position and may not be produced as evidence or disclosed to any judge, arbitrator or other decision maker in any legal or other formal process, except where otherwise disclosable in law.”