Lawyers discuss litigious business very often on “without prejudice” terms. By this they mean to have the contents of the conversation confidential between the parties. This applies particularly to the exclusion of a court. That is, no party may unilaterally disclose to the court what was discussed.
These conversations can have odd aspects; one lawyer (A) may wish to speak “without prejudice” and the other lawyer (B) may not share that desire, for the things that he/she has to say. B may speak expressly on those terms.
Are the banal, uncontroversial terms of B not to be disclosed to a court?
Irish judges, particularly in the lower courts, are not receptive to submissions that some or all elements of “without prejudice” discussions may be disclosed to the court.
In Oceanbulk Shipping & Trading SA v TMT Asia Limited and others [2010] UKSC 44 the UK Supreme Court examined a particular basis on which evidence of “without prejudice” discussions could be admitted. (To aid in the interpretation of an agreement between the parties).
The Court, in its judgment, referred to Investors Compensation Scheme v. West Bromwich Building Society [1997] UKHL 28; [1998] 1 All ER 98; [1998] 1 WLR 896, also a case turning on document interpretation. Here is a sample from it;
“Secondly, the parenthesis seemed very strange against the background of the law. If it was exhaustive, why was “sounding in rescission for undue influence” singled out? What about rescission on other grounds, or claims for breach of statutory or common law duty? It was rather like providing in a lease of a flat that the tenant should not keep “any pets (whether neutered Persian cats or otherwise).” Something seemed to have gone wrong.”
And again:
“The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.”
By Irish standards this last point is hard to take. After all, we have the leader of our Executive addicted to the phrase, “…going forward”. His predecessor’s mode of expression was sufficiently eccentric, closed and personal as to be representative of a type; Bertiespeak.
Our politicians fall, consistently, into solecisms. (Our Minister for Justice etc. tells us persistently that he will appraise his ministerial colleagues; would that he did, and let us honestly know the outcome).
To cleave to the standards of the UK courts would lead to apoplexy. No, no; that’s too much.
That said, we should fight against a complete absence of standards.
Save the word “presently”; it does not mean “currently”.
Save the word “refute”; it does not mean “reject”.
Save the word “pleaded”; there is no word “pled”.