With Or Without Prejudice? – Exceptions To The "Without Prejudice" Rule

In the recent case of Oceanbulk Shipping & Trading SA v TMT Asia Ltd and others [2010] UKSC 44, the Supreme Court has created a further exception to the general rule that communications protected by without prejudice privilege are inadmissible in court.

What is without prejudice privilege?

Without prejudice privilege is, broadly, a rule of evidence which applies to exclude communications aimed at settlement of a dispute, whether made orally or in writing, from evidence in litigation between the parties. The rationale behind the rule is to encourage parties to settle their disputes by enabling them to speak openly to each other in settlement negotiations, without fear that what they say might be subsequently used in court against them if the settlement negotiations fail. For the without prejudice rule to apply, there must be: