HIGH COURT, ACCRA
Date: 8 MAY 1975
AMISSAH J A
CASES REFERRED TO
(1) Williams v. Thomas (1862) 2 Dr. & Sm. 29; 62 E. R. 532.
(2) Walker v. Wilsher (1889) 23 Q.B.D. 335; 58 L.J.Q.B. 501; 54 J.P. 213; 37 W.R. 723; 5 T.L.R. 649, C.A.
(3) Waldridge v. Kennison (1794) 1 Esp. 143; 170 E.R. 306.
NATURE OF PROCEEDINGS
PRELIMINARY RULING on the admissibility of a letter written “without prejudice.” The facts are adequately stated in the ruling of Amissah J.A. sitting as an additional judge of the High Court.
COUNSEL
Puplampu for the plaintiff.
Okine for the defendant.
JUDGMENT OF AMISSAH J.A.
The point at issue here is narrow but neat. It is whether a letter written without prejudice by one party may be given in evidence to prove not a statement made with the object of compromising the action but to prove a signature in the settlement of a dispute. Public policy demands that statements made without prejudice in an attempt to settle a dispute be excluded as evidence in the case. The defendant in this case wants to prove to the court what he says his signature is, it being a matter in controversy. He puts forward in support of this objective a letter which he claims he signed. Counsel for the plaintiff objects to the production of the letter on the ground that it was written without prejudice. If the object of introducing the letter was to prove the content of the statements therein then without question counsel for the plaintiff would be right in his contention. It being the rule that a letter written without prejudice cannot be
[p.416] of [1975] 1 GLR 415
looked at by the court without the consent of both parties. But is counsel right if the sole purpose of tendering the letter is to show the proper signature of a party? The law of evidence is familiar with many situations where an item may be inadmissible for one purpose but yet admissible for another. So that the rule excluding “without prejudice” statements may not be an absolute bar to the admission of the letter in dispute if it is otherwise admissible and its purpose is not to infringe that rule.
An interesting feature of this debate is that it is the writer of the letter who in normal circumstances would be prejudiced by its admission who puts it forward. But that in itself may not be a sufficient reason for its admission. We are reminded that in a similar situation Kindersley V.C. in Williams v. Thomas (1862) 2 Dr. & Sm. 29 considered that the term “without prejudice” contained in a letter meant that the writer of it must not be prejudiced by it, but that he did not think it followed that it was not competent to the writer to use it, although it could not be used against him. But this analysis was criticised by Lindley L.J. in the later case of Walker v. Wilsher (1889) 23 Q.B.D. 335 at p. 338, C.A. where the learned judge pointed out that Kindersley V.C. had overlooked the fact that the object of putting in that letter was to prejudice the opposite party by putting in the answer to it, thereby infringing the rule that all letters written in that series of negotiations would equally be protected.
Nevertheless, there are limits to the exclusionary effect of letters designated as “without prejudice.” As Lindley L.J. himself said in the case referred to at p. 338:
“No doubt there are cases where letters written without prejudice may be taken into consideration, as was done the other day in a case in which a question of laches was raised. The fact that such letters have been written and the dates at which they were written may be regarded, and in so doing the rule to which I have adverted would not be infringed. The facts may, . . . be given in evidence, but the offer made and the mode in which that offer was dealt with—the material matters, that is to say, of the letters—must not be looked at without consent.”
Again it has been held that the privilege to prevent disclosure does not extend to statements of fact made in the course of “without prejudice” negotiation if such statements have no reference to the dispute between the parties, for example, where one of them casually admits that a document is in his handwriting: see Waldridge v. Kennison (1794) 1 Esp. 143.
In the case before me, the defendant does not seek to make use of the terms of the letter written without prejudice by him nor does he seek to show how those terms were dealt with in negotiations between him and his adversary. No prejudice is suffered by him or his opponent on that score. If it is accepted that the meaning of “without prejudice” is without prejudice to the position of the writer of the letter if the terms he proposes are not accepted (per Lindley L.J.), then what possible prejudice could be suffered by the defendant or by his opponent in relation to the terms of the
[p.417] of [1975] 1 GLR 415
offer, its acceptance or rejection, if the signature to the letter only is identified as the writer’s for the purpose of refuting an allegation that his signature was otherwise? I fail to see such prejudice. In the circumstances I would admit the letter for the limited purpose for which it is put in.
DECISION
Objection overruled.
S.E.K.
