Mapp (Nee Callendar) v Pile and Springer

• Jurisdiction: Barbados
• Judge: Cornelius, J.
• Judgment Date: 16 January 2014
• Neutral Citation: BB 2014 HC 2
• Docket Number: 1681 of 2012
• Court: High Court (Barbados)
• Date: 16 January 2014

High Court

Cornelius, J.

1681 of 2012

Mapp (Nee Callendar)

and

Pile and Springer

Appearances:

Ms. Anya S. Kirton, Attorney-at-Law for the claimant.

Ms. Marguerite Woodstock-Riley, QC Attorney-at-Law for the first and second defendants.

Civil practice and procedure - Evidence — Admissibility of “without prejudice” letters.

Cornelius, J.

1 This is an application for an interim payment by Miss Mapp, the claimant, against the defendants, Miss Pile and Miss Springer. An important issue arises as to the use of ‘without prejudice’ communications in trials for personal injury.

Background

2 Early on the morning of October 12, 2009, the claimant was standing at a bus stop on the left of Hindsbury Road, St. Michael facing in the direction of Weymouth when she was struck from behind by a motor vehicle bearing registration number XE 700. The accident caused her to immediately lose consciousness. She also sustained a fracture to her pelvis, lacerations and contusions to her limbs, extensive damage to her left leg, a fractured jaw and particularly extensive damage to her teeth, gums and mouth.

3 She now applies to this Court for an interim payment in the sum of$6,430.00 relying on representations made by the insurers of the vehicle of the second defendant in ‘without prejudice’ correspondence in order to do so. Those insurers, Trident Insurance Company Limited, formerly the Third defendant, were struck out on the 23 May 2013 as a party to these proceedings.

4 The correspondence in question is firstly a letter dated November19, 2009 from Mr. Dwayne R. Nurse, the Claims and Risk Controller of the insurers to Mrs. Angela Mitchell-Gittens, the then attorney-at-law for the claimant (hereinafter called “the first letter”). The letter is exhibited to the claimant's affidavit as “Exhibit JCM 1” and is captioned “Motor vehicle accident on 12th October 2009/Our insured: Carolyn Springer/Your Client: Joyann Callendar/Our Ref: MPV-09/10/0241” and in it the insurers state the following:

“We acknowledge receipt of your letter dated 6th of November 2009 in connection with the captioned matter and have noted the contents therein.

We wish to advise that we are willing to provide interim payments to any reasonable medical procedures which relate to the accident under consideration. Such requests should be accompanied with the relevant supporting documentation.

Should you have any queries, please do not hesitate to contact the undersigned.”

5 The insurers did in fact subsequently on August 26, 2010 forward a cheque to the amount of $1,970.00 to Mrs. Mitchell-Gittens as payment for some of the cost of the medical treatment provided by Dr. Wendy Maynard, one of the doctors who had treated the claimant for her injuries. The cheque was forwarded through communication that was not marked ‘without prejudice’. Aside from that cheque of $1,970.00, the insurers have made no further payments but the claimant has continued to incur costs on medical treatment provided by the same Doctor Maynard.

6 Further correspondence compounded the issue. The claimant's doctor, Dr. Maynard indicated by letter dated August 27, 2012 that all outstanding invoices (which currently amount to $4,430.00) had to be satisfied before the Medical Report, which itself would cost $2,000.00 to be paid in advance, would be provided. The claimant's attorney-at-law wrote to the defendants' attorney-at-law by letter dated October 1, 2012 enquiring whether the insurers would be willing to pay these costs so that the matter could be expeditiously resolved.

7 By letter dated October 3, 2012 and marked “without prejudice save as to costs” and exhibited to the claimant's affidavit as “Exhibit JCM 5” (hereinafter called “the second letter”), the third defendant through its attorney-at-law indicated that it would be willing to pay only for the Medical Report and would not be willing “at this time…to make any other payments”. The writer of the letter was careful to stress that the defendant's readiness to pay for the Medical Report was “in no way an admission of liability”.

8 The defendants' position is this: they do not deny that it was the first defendant's motor vehicle bearing the registration number XE 700 that struck the claimant on October 12, 2009. Neither do they deny that the first defendant was driving the said vehicle at the time that it did so. They contend, however, that the accident was caused not by the negligence of the first defendant but by the negligence of an unknown driver of an unknown motor vehicle who came on to the first defendant's side of the road causing her to swerve from the road and strike the claimant so as to avoid a head on collision with that unknown vehicle. Relying on the defence of inevitable accident, the defendants posit that they have no claim to answer.

9 Further, the defendants object to the making of the interim payment sought by the claimant through her Application dated May 22, 2013. This application is supported by an Affidavit deposed by the claimant and filed contemporaneously with her application in which the claimant exhibits and seeks to rely upon ‘without prejudice’ correspondence. Because the correspondence is clearly marked “Without Prejudice” the defendants made an in limine submission in which they strongly objected to its admission and use in these proceedings, requesting instead that the ‘without prejudice’ letters be struck out from the claimant's Affidavit.

10 It is against this background that the claimant now applies to the Court for interim payment pursuant to Part17 of the Supreme Court ( Civil Procedure) Rules, 2008.

ISSUES

11 Before the Court considers whether, on the facts of this case, it should order interim payment pursuant to Part 17, it is asked to first consider the preliminary point of whether the letters marked ‘without prejudice’ that are exhibited to the claimant's affidavit are admissible as evidence and can therefore be relied upon by the claimant in her application for interim payment or whether they should instead be struck out.

LEGALSUBMISSIONS

12 Counsel for both parties addressed me, orally and in writing, on the issue identified above.

13 In her submissions, Ms. Kirton who appeared for the claimant did not dispute the existence of the ‘without prejudice’ rule. She argued, however, that this rule was a rule based on custom and popular usage and not a legal principle originating from either statue or the common law.

14 Directing the Court to the dictum of Oliver, L.J. in Cutts v. Head and Another[1984] Ch. 290 at 306, Ms. Kirton insisted that not only was the ‘without prejudice’ rule grounded in public policy but it was not absolute. She drew the Court's attention to the judgment of Lord Griffith in Rush and Tompkins Ltd. v. Greater London Council and Another[1988] 3 All E.R. 737 where the learned judge asserted that a Court could have regard to ‘without prejudice’ material where the justice of the case required it to do so.

15 Counsel argued that the exceptions to which the rule was subject included one which permitted the Court to examine documents labelled ‘without prejudice’ to determine whether an agreement had been concluded between the parties. According to Ms. Kirton, the ‘without prejudice’ material could be examined in such an instance as the material became relevant not for the facts that may have been admitted therein but because they were evidence of the offer and that acceptance forming part of a contract. This particular submission was buttressed with the English cases of Muller v. Linsley & Mortimer [1996] 1 P.N.L.R. 74 and Tomlin v. Standard Telephone and Cables Ltd.[1969] 3 All E.R. 201. Unsurprisingly, Ms. Kirton's submissions did not find favour with Counsel for the defendants.

16 Learned Queens Counsel for the defendants, Mrs. Woodstock-Riley, maintained that the claimant could not rely on any exception to the ‘without prejudice’ rule to enter the disputed correspondence into evidence and urged the Court to strike out any reference to that correspondence contained in the affidavit evidence. She contended that the claimant was seeking to rely on the facts contained within the ‘without prejudice’ letters rather than the evidence of the correspondence itself and submitted that despite the claimant's assertions to the contrary reliance on the disputed correspondence was being used to show that the defendants had accepted liability.

17 In the course of her submissions, Mrs. Woodstock-Riley, QC directed the Court to chapter 48 of Blackstone Civil Practice 2013, Halsbury's Laws of England (Fourth edition) Volume 17 at para 212 and the English cases of Ofulue and another (FC) v. Bossert (FC)[2009] 1 AC 990, Galliford Try Construction Ltd v. Mott MacDonald Ltd.[2008] E.W.H.C. 603 (TCC), Berg v. IML London[2002] 1 W.L.R. 3271, Forster et al v. Friedland et al (Unreported) Court of Appeal of England, Decision of November 10, 1992, Rush & Tompkins Ltd. v. Greater London Council and Another (supra) and Cutts v. Head and another (supra). She used these authorities to discuss the nature of the ‘without prejudice’ rule and its underlying purpose, contending like Counsel for the claimant before her that the rule was grounded in public policy, more specifically the public policy of encouraging settlement rather than litigation. Mrs. Woodstock-Riley argued that permitting the admission of the disputed documents into evidence would not only be very clearly contrary to this policy but would establish a precedent that would compound the litigious culture that already existed and discourage parties from resolving their disputes in amicable and cost-effective pre-litigation negotiations.

LAW

18 The legal principles governing the admissibility of without prejudice communications are, according to Counsel who appeared before me, undisputed and easily rehearsed. Both Counsel accept the relevant...