Without prejudice communications

“Communication for the purpose of settling a dispute is not admissible in evidence”

The contents of written or oral communication which take place during a dispute between the parties, where expressly is stated or agreed that it is made “without prejudice” for the purpose of an out of Court settlement, it is protected as privileged communication. In such a case, everything that it is written through correspondence or it is said between the parties during the course of a meeting, it cannot be disclosed to the Court by any of the parties without the consent of the other.

The privilege protects the parties so that they could freely express and negotiate for the purpose of finding a settlement of the dispute, without the parties worrying that the contents of their communication will be disclosed, if they do not reach a settlement. This flexibility provides the possibility to each party to exchange views, to submit proposals or counter-proposals and to negotiate, without his rights being prejudiced in case of no settlement. The important element is the purpose of the communication or the discussion and not the place or the time which it takes place. The privilege’s purpose is to assist the parties to proceed with negotiation and to reach an agreement, waiving any reservations which could avert the attempt for an out of Court settlement and the resolution of their dispute. However, when the purpose of the parties’ communication is not the resolution of the dispute, the rule of privilege is not applicable and the disclosure of that communication is permitted.

Communications without prejudice

The question arises as to what happens when one of the parties, irrespective of the existence of privilege, attempts to disclose the content of the communication which took place between them without reaching a settlement. The affected party who did not provide his consent is entitled either to object to the deposition of a testimony which includes the content of the privileged communication or to apply for the striking out of that part of the pleading or affidavit which refers to it.

The ability to strike out allegations from pleadings or affidavits is provided by the Civil Procedure Rules, Order 19 rule 26 και Order 39 rule 10 respectively, which empowers the Court to strike out anything unnecessary or scandalous or anything which seeks to adversely affect or cause an embarrassment or delay the fair trial of the action.?

The above, as well the issue of the striking out of those allegations were examined by the Limassol Rent Control Court, where the Court held that, on the basis of the facts of the case, it had no choice but to exercise its discretion in favour of the approval of the application to strike out and therefore issued an order striking out a specific paragraph of the respondents’ affidavit. In particular, in an affidavit filed by the respondents in support of their objection, there was a paragraph where the affiant referred to a meeting which took place in the presence of the applicants’ lawyers and the respondents as well as to a communication which the involved parties exchanged. This meeting took place ‘‘without prejudice and without prejudice of the parties’ rights’’. During the meeting, it became clear that the parties would have discussed freely and nothing from what was to be said would be used in the Court, since this meeting was convened without prejudice. All the attendees agreed with the above.

Court decision

The Court held that in the present case, it was an admitted fact that the meeting, to which the said paragraph of the affidavit was referring to, took place in an effort to find a settlement and the attendees agreed that it will take place ‘‘without prejudice’’. The question arising is whether the content of such a meeting was possible to be disclosed before the Court by the respondents without the consent of the applicants. The answer, as the Court states, is provided in Halsbury’s Laws (4th edn) paras 212-213 which discusses the issue of ‘‘without prejudice discussions’’.

The Court, based on the relevant legal principles, held that none of the privilege’s exceptions applied to the present case and noted that the purpose of the communication and not the time at which it took place, is the important element. Examining meticulously the content of the paragraph against which the striking out was sought, the Court discerned that it could not be acceptable as evidence since, to the extent it attributes illegal behaviour to the applicants, is scandalous and irrelevant, whereas to the extent it refers to a privileged communication, its submission is also unacceptable.