Overview

It is commonly thought that the words "without prejudice" mean exactly that - litigants can write or say what they like, safe in the knowledge that such information will never be put before a judge and used against them. Think again!

In certain circumstances, a party's statements can be admitted as evidence. The Supreme Court's decision in Oceanbulk Shipping & Trading SA v TMT Asia Limited & Others, has confirmed that without prejudice negotiations can be opened up in order for the court to interpret the terms of a settlement.

The decision is controversial as there are some that believe this a step too far and will discourage parties to settle. Not only is there a real difference of opinion among legal practitioners but the Supreme Court itself overturned the Court of Appeal and agreed with the High Court judge. Wragge & Co sums the situation up.