With Or Without Prejudice?

With or Without Prejudice? – Supreme Court of Gibraltar determines settlement offer made "without prejudice" amounted to unambiguous impropriety.

The Supreme Court of Gibraltar has this week considered and applied the rarely invoked "unambiguous impropriety" exception to without prejudice ("WP") privilege. In a detailed Judgment, the Court not only dismissed the Defendant's application to amend his defence and counterclaim on the grounds of illegality but also found that certain threats made within a settlement offer for the parties to 'drop hands' were such that the correspondence could not have been protected by WP privilege.

The WP privilege rule is based on the policy consideration that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said during such negotiations may be used to their prejudice in the course of those proceedings. However,