Defendants, normally backed by Insurers, continue to take the point that a mere discrepancy between a “Without Prejudice” Schedule (with no certification) and a Bill of Costs constitutes unambiguous impropriety. They then usually argue as a preliminary issue in Points of Dispute that such Bills of Costs should be struck out under the old CPR 44.14 (now CPR 44.11).
This recently culminated in a hearing before a District Judge on 15th March 2013 listed as a preliminary issue in the case of Steven Wickenden –v- Carl Brian in the Bradford County Court.
It is well established, in law, that written and/or oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, may generally not be admitted in evidence.
This wide approach is consistent with the judgment of Esher M.R. in Walker –v- Wilsher (1889) 23 QBD 335:
“It is, I think, a good rule to say that nothing which is written or said without prejudice should be looked at without the consent of both parties, otherwise the whole object of the limitation would be destroyed”.
The judgment of Esher M.R. reflects the underlying policy which was described by Oliver LJ in Cutts –v- Head  Ch 290 as follows:
“It is that parties should be encouraged as far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations….may be used to their prejudice in the course of the proceedings.”
This decision was subsequently cited, with approval by Lord Griffiths, in the House of Lords in Rush & Tompkins –v- Greater London Council  A.C. 1280, 1299 WLR 939.
To read the rest of Jim Knight’s article – just click here 130626 Without prejudice costs schedules JK.