A letter marked as ‘without prejudice’ was ‘plainly not’, a judge has ruled. Master Marsh, sitting in Samuel Arthur Jones v Neal Tracey & Ors, said the issue of a letter marked ‘without prejudice’ had been raised after a defendant referred to it in submissions in relation to costs in a probate case. 

The claimant, Samuel Arthur Jones, was ‘unwilling to agree to a waiver of the privilege’, the judge said. 

The eight-page ruling on costs, which followed a judgment concerning a will, said that in order to decide whether the letter was ‘without prejudice’ it would have to be seen by the judge in the context of the other relevant correspondence between the parties.

Finding that though the letter was sent on a without prejudice basis, and was marked as such, the judge said it was still open for the third defendant to rely on it.

He added: ‘The letter does not contain an offer and does not relate to communications about a specific offer. It relates to the use of ADR. It seems to me that it was plainly not a letter that was intended to be "without prejudice" and this would have been obvious to the reasonably minded recipient. It is right therefore that I have regard to it.’

Discussing ADR, the judge noted that ‘the claimant’s failure to engage more positively with ADR and in particular mediation, ENE or Chancery FDR…without providing any explanation is surprising’.

He added: ‘I observe that both parties had not been specific about the form of ADR that was proposed. Although it is common to conflate ADR with mediation it is not right to do so because ADR encompasses a range of approaches including Chancery FDR, ENE and conventional negotiations at a round-table meeting, or otherwise, as well as mediation.’

The defendant was ordered to pay the claimant’s costs.

 

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