Without prejudice under indian law: Interesting read

 Waiver of ‘without prejudice’ privilege in India 

‘Without prejudice’ privilege finds statutory recognition within Section 23 of the Indian Evidence Act. 

This privilege governs admissibility of evidence in court and is founded on the public policy of encouraging litigants to settle their differences rather than litigate them towards a conclusion’. While legal professional privilege is a substantive right, ‘without prejudice’ privilege is generally a rule of admissibility, either based on a contractual, or implied contractual right, or on public policy.6 An important ruling in this regard discussing the contours of ‘without prejudice’ privilege is the Supreme Court’s ruling in M/s Peacock Plywood Pvt. Ltd. v. The Oriental Insurance Co. Ltd.7 Laying down general principles on such documents, the Court observed that a genuine intent to settle, which is a precondition to the applicability of the principle, can be deduced through surrounding circumstances and clear context indicating intent to compromise. It is not necessary for documents to mention “without prejudice” within so long as they as part of a tangible “body of negotiation correspondence” between parties.8 Similarly, reports etc. which have may or may not been marked as “without prejudice” and not even shared with the other side and have nothing to do with negotiations – may not be protected by the ‘without prejudice’ rule.9 In this context, reference may be drawn to the Australian Evidence Act 1995, which provides that “a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute” would not be adduced as evidence.10 The Supreme Court of New South Wales in Hera Resources Pty Ltd v Gekko Systems Pty Ltd.11 held that in case of a report annexed to a letter which was not provided “as part of some process agreed between the parties to negotiate a settlement” would not be protected by ‘without prejudice’ privilege. The privilege attached to such ‘without prejudice’ correspondence would have to be evaluated and interpreted as per the relevant facts and circumstances. For example, if the material on record indicates that the negotiations are still in progress and there is no finality on what was contained in the document marked as “without prejudice”, then the document so marked cannot be considered without the consent of both the parties.12 Waiver of such ‘without prejudice’ correspondence can be considered at the trial only with the consent of both parties.13 Therefore, while legal professional privilege can be waived at the behest of the party entitled to the privilege, however, ‘without prejudice’ privilege can only normally be waived with the consent of both parties to the correspondence.14 In the subsequent chapter, we further explore the contours of the waiver of ‘without prejudice’ privilege whilst drawing references from common law jurisdictions such as the UK and Singapore.

http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Privilege-and-Waiver-Part-II.PDF