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Snapshot

  • Common law excludes from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation or anticipated litigation.
  • Dowling confirmed the ‘without prejudice’ privilege only prevents disclosure to third parties in a subsequent dispute if there is a sufficient connection between the subject matter of the original dispute and the later one
  • The Court must assess whether the party resisting disclosure would have had a legitimate expectation that the material brought into existence for the purpose of settling the earlier dispute will not be used against it in the later dispute.

As we all know, common law excludes from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation or anticipated litigation. It is known as ‘without prejudice’ privilege because parties say things and make admissions to settle disputes which are prefaced by stating that it is ‘without prejudice’, conveying that it is not intended that it can be used against them later. There are a number of exceptions, for instance if the negotiations lead to a settlement then evidence of them can be tendered to establish the settlement, and it appears the principle has limited effect when third parties seek access.

For those not already acquainted with the decision of Hammerschlag J in Dowling & Anor v Ultraceuticals Pty Ltd & Ors [2016] NSWSC 386: 93 NSWLR 155 (‘Dowling’), it is worth examining or perhaps revisiting, as it helpfully confirms that the ‘without prejudice’ privilege only prevents disclosure to third parties in a subsequent dispute if there is a sufficient connection between the subject matter of the original dispute and the later one.

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