Without Prejudice: Be Careful What You Record

On 6 July 2017, the Supreme Court of Appeal ("SCA") issued a judgment which waters down the rule that without prejudice communication between lawyers, aimed at settling a litigious dispute, enjoys protection from evidential disclosure.

Without prejudice correspondence, popularly referred to as "off the record" communications, often plays an important role in litigious matters. The principle is underpinned by the rationale that during settlement negotiations one may have to "give something away" in order to close the gap between what can often be an intractable, expensive and hostile dispute. Shielding such correspondence from the formal arena, more particularly potential admissions made in such correspondence, acts as a necessary incentive to the parties who would otherwise not engage in such communication. The non-binding nature of such correspondence has long been recognised under English law and was duly imported into South African law.