Admissions in Civil Cases, when relevant
A plain and simple reading of Section 23 of the Indian Evidence Act, 1872 will lead to a conclusion that, in Civil cases, an admission shall e rendered irrelevant A! If it is is e"pressl# e"pressl# intended intended to e irrele irrelevant vant $! %nder circumst circumstances ances from from which the Court Court can infer infer that the parties parties agree agree that evidence evidence of it should not e given &ord 'ansfiel# faulousl# once stated that “all men must be permitted to buy their peace, without prejudice to them, should the offer not succeed, such offer being made to stop litigation, without regard to to the question whether anything is due. d ue. So, the purpose of this section is to, that the doer should not e shut against compromise, when a man offers to compromise a claim, he does not there# necessaril# admit it, ut simpl# agrees to pa# so much to get rid of the action!1 A. Expressly Expressly intended intended to be irrelev irrelevant ant (Without (Without Prejudice) Prejudice)
(he reasoning ehind this conception is referred as !without prejudice privile"e#. $ (he )uridicial asis of the rule is part Contract Contract and part *ulic *olic#!3 +ithout *re)udice privilege is seen as a form of privilege and not a sustantive privilege (he first -uestion is to determine what communications attract without pre)udice privilege! Correspondence will onl# e protected # # without pre)udice privilege if it is written for the purpose of a "enuine attempt to compromise a dispute etween the parties! It is not a precondition that the correspondence ears the heading without pre)udice! (here are some circumstances in which the words are used ut ut where the documents do not no t attract without . pre)udice privilege! 1! +here the part# part# writin writing g part# writing writing was was not involved involved in "enuine settlement / negotiations! th
1 Sir 0ohn +oodroffe and S#ed Amir Ali on &aw of Evidence 18 Edition, ol I, *g no 1.3!
2 4e 4iver Steamer Co 1571 &4 /
Ch 822 0ames &0 6 (he +ords “without prejudice” simpl# means this6 I mae #ou an offer, if #ou do not accept it, this letter is not to e used against me9: +aler +ilsher +ilsher ;1885< 23 =$> 337 'ellish &06 the# are tantamount to to sa#ing, I mae #ou an offer which #ou ma# accept or not, as #ou lie: ut, if #ou do not accept it, m# having made it, is to have no effect at all9!
3 (he
Common &aw &irar#, *hipson on Evidence1/ th Edition, *gno6/..
4 &aw#ers need not disclose correspondence with their clients, S! 12/6 *rofessional Communications,
Indian Evidence Act, 1872 th
5 (he Common &aw &irar#, *hipson on Evidence1/ Edition, *gno6/./
2! +here although the words were used, the# were used in circumstances which had nothing to do with negotiations!7 3! +here the words are used in completel# different sense!8 ! (here are circumstances in which the correspondence is initiated with a view to settlement ut the parties do not intend that the correspondence should e without pre)udice!5
%. &nder circumstances 'rom which the Court can in'er that the parties a"reed that evidence o' it should not be "iven.
As it has alread# stated that, It is not a precondition that the correspondence ears the heading without pre)udice, (here are some circumstances in which the words are used ut where the documents do not attract without pre)udice privilege! (he conv erse of it follows that, if it is clear from the surrounding circumstances that the parties were seeing to c ompromise the action, evidence of the content of those negotiations will, as a general rule, not e admissile! In a case related to suit for rent 1?, the material evidence was that of plaintiff@s pleader who deposed that he had two interviews with one of the defendants, once aout a month efore the suit when a settlement was suggested vi, diminution of the interest and again on the da# of the institution of the suit when the pleader was ased to mae a compromise, it was held that as there was admittedl# no e"press condition that evidence of the interviews should not e given, and it 6 In
re Daintrey( If the detor gives notice to an# of his creditors that he has suspended or that he is aout to suspend pa#ment of his dets! As such letter, in its nature, ma# pre)udice the person to whom it is addressed, it ma# e looed at # the court in order to decide whether or not it amounts to an act of anruptc#
th
7 (he Common &aw &irar#, *hipson on Evidence1/ Edition, *gno6/./ Surve#ors reports, for
e"ample, are sometimes headed without pre)udice, although the# have nothing to do with negotiations! 8 Council of *eterorough 'ancetter >evelopments ;155/< E!B!C!S .? from the conte"t in which without
pre)udice was used in the letter and other suse-uent correspondence, the phrase was clearl# indicating an intention to see compromise without giving up the right to see redress through the courts!
9 >i"on Stores
Broup (hames (elevision ;1553< 1 All E!4! 35 In a case pertaining to television programmed of defamator# nature, it was held that where a letter was written as a repl# to a without pre)udice letter, or was part of a continuing se-uence of negotiations, then it would e privileged! In this case the letters had een written long after negotiations and the without pre)udice correspondence had ceased! It followed that the# were not privileged and could e used without *Ds consent!
10 'ea)an Alimuddin C 13?: 2? C+ 1217
could not e inferred from the circumstances that the parties had so agreed, the evidence could not e e"cluded! In Cutts Fead and another 11a case involving the access over the defendant@s land to a fisher# owned # the plaintiff, the solicitors of the plaintiff sent a letter titled without pre)udice for seeing settlement "Should the aboe proposals, as a whole, not recommend themseles to your clients we would respectfully suggest that they gie further consideration to those relating to damages. !hese are put forward to enable the real issue, that of access, to be dealt with more effectiely, and in the eent of this being unacceptable to your clients, we resere the right to bring this letter to the notice of the judge on the issue of costs.” (he Court of Chancer# denied to tae this letter into consideration while awarding the costs, ut the Court of Appeal e"pressed the opinion that the Chancer# Court@s decision to den# the admission of such letter is flawed as ased on the circumstances the court could reasonal# infer that it was not intention of the parties to court should not admit it!12 (he 18.th &aw Commission of India, elaoratel# discussing the issue and c onsidering the recent developments and the need to address the lapses in the e"isting provisions suggested that Sec! 23 should e as follows6 $ 1 In civil cases, no admission is relevant6
a if it is made either upon an e"press condition that evidence of it is not to e given: or if it is made for the purposes of or in the course of a settlement of compromise of a disputed claim: or c under circumstances from which the Court can infer that the parties agreed together that evidence of it should not e given, unless the part# who made the admission and the part# in whose favour the admission is made agree that evidence e given, or evidence as to the admission ecomes
11 ;158< 2 +!&!4! 35
12 ;158< 2 +!&!4! 35 , (As a practical matter, a consciousness of a ris as to
costs if reasonale offers are refused can onl# encourage settlement whilst, on the other hand, it is hard to imagine an#thing more calculated to encourage ostinac# and unreasonaleness than the comfortale nowledge that a litigant can refuse with impunit# whatever ma# e offered to him even if it is as much as or more than ever#thing to which he is entitled in the action!
necessar# to ascertain if there was at all a settlement or compromise or to e"plain an# dela# where a -uestion of dela# is raised: 2 Such an admission which is not relevant under suGsection 1 ma# e relevant in so far as it touches upon an issue etween the person who made the admission and a third part# to the admission! 3 othing in this section shall e"empt: a an# legal practitioner from giving evidence of an# matter of which he ma# e compelled to give evidence under section 12/: or a person who made a pulication, from giving evidence of an# matter of which he ma# e re-uired to give evidence under section 132 A! E"planation I6 Hlegal practitioner@ as used in this section shall have the meaning assigned to it in E"planation 2 to section 12/! E"planation II6 Hpulication@ as used in this section shall have the meaning assigned to it in para a of the E"planation to section 132 A!9 13 +e ma# note that this does not affect the operation o f rder 23, 4ule 3, Code of Civil *rocedure, 15?8!1 CASE ANALYSIS Rush & Tompkins Ltd V Greater London Council 1 !acts in "rie#$ 4ush J (ompins were emplo#ed # the B&C as main contractors to uild a housing estate! (he# emplo#ed a compan# trading as Care# Contractors as suGcontractors to do wor on the site! Care# Contractors made a loss and e"pense claim against 4ush J (ompins which the B&C refused to pa#! 4ush J (ompins commenced proceedings against oth the B&C and Care# Contractors! Against the B&C it claimed a declaration that it was entitled to e indemnified against the claim # Care# Contractors and against oth defendants it sought an in-uir# as to the amount to which Care# Contractors were entitled! After without pre)udice negotiations, 4ush J (ompins concluded a gloal settlement with the B&C under which it was paid K1!2 million in respect of all its contractual claims most of which were not in issue in the action on the footing that it would meet an# claims from its suGcontractors! Care# Contractors pursued its claim against 4ush J (ompins and sought discover# of the documents containing the without pre)udice negotiations in order to ascertain what part of the K1!2 million had een
th
13 &aw Commission of India, 18. 4eport, *g no 121
th
14&aw Commission of India, /5 4eport, *g no 175
15 ;1585< A!C! 128?
allocated to its loss and e"pense claim! it would constitute as an admission # 4ush J (ompins Issues$ +hether 4ush J (ompins can claim without pre)udice privilegeL %eld$ ord *ri''iths stated that as a general rule the Hwithout pre)udice@ rule renders inadmissile in an# suse-uent litigation connected with the same su)ect matter proof of an# admissions made in a genuine attempt to reach a settlement!9 Fouse of &ords e"pressed the opinion that it is a matter of pulic polic# that settlements of this sort should not e disclosed or revealed so as to facilitate the negotiation or settlement without seeing litigation!
uller V Linsle' & ortimer 1( !acts in "rie#$ (he plaintiff on the advice of defendants Solicitors in order to protect his shares in Sagesoft ltd, in which he was a compan# director, had had his shares out of the reach of the compulsor# sale provision # transferring them to his wife! %nder the a rticles, the oard was oliged to register such transfer if presented dul# stamped ut due to an error committed # the Solicitors the memers of the oard re)ected the transfer of shares, due to which 'uller lost as man# as million pounds, later he initiated proceedings against the compan# and in the course of settlement, received some compensation! Fe now sees indemnit# against the solicitors, solicitors see disclosure of the documents of negotiations etween 'uller and the Compan#! Issues$ +hether the >ocuments of negotiation etween 'uller and the Compan# are safeguarded # without pre)udice privilege from disclosureL %eld$ +o''mann
“!he without prejudice correspondence forms part of that conduct and its releance lies in the light it may throw on whether the ullers acted reasonably in concluding the ultimate settlement and not in its admissibility to establish the truth of any e#press or implied admissions it may contain. $n the contrary, any use which the defendants. may wish to ma%e of such admissions is li%ely to ta%e the form of asserting that they were not true and that it was therefore unreasonable to ma%e them&&&&&&&&&&&.. 't would, in my judgment, be inconsistent to gie the indemnifier the benefit of this rule but to deny him the material necessary to ma%e it effectie.” -winton homas, e""att .. opined that # putting in issue the reasonaleness of their own conduct and disclosing the letter efore action and the agreement the plaintiffs had also waived an# privilege that attached!
16 ;155/< *!!&!4 7
c Ta))art V c Ta))art 1* !acts in "rie#$ Fusand petitioned for divorce on the ground of desertion # the wife without cause for a period at least three #ears immediatel# preceding the presentation of the claim! In the course of proceedings efore the commissioner oth the husand and wife mentioned aout an interview with a proation officer! (he Commissioner, even though e"pressed some dout on whether the evidence sought to e tendered # the proation officer is admissile, still found it necessar# to admit his evidence in the interests of )ustice! (he *roation officer gave an evidence which faovured the husand on the asis of which the commissioner granted the order of decree nisi! +ife challenges the order! Issues$ +hether the evidence tendered # the *roation fficer is admissile as the interview with him is without pre)udice, private or confidentialL %eld$ /ennin"
“ !he rule as to ithout )rejudice communications appl# with special force to negotiations for reconciliation! It applies whenever the dispute has go t to such dimensions that litigation is imminentMMMM in all the cases where estrangement has reached the point where parties consult a proation officer, litigation is imminent! It is clear that there is a dispute which ma# end in the 'agistrates@ Court or the divorce court! (he proation officer has no privilege of his own from disclosure!9
iterature review
Confidential overtures of pacification and an# other offer or proposition etween litigating parties, e"pressl# or impliedl# made without pre)udice see re 4iver Steamer Co! 1871 &4 /! Ch! 822 are e"cluded on ground of pulic polic#! ow, if a man sa#s his letter is without pre)udice, that is tantamount to sa#ing6 I mae #ou an offer which #ou ma# accept or not, as #ou lie: ut if #ou do not accept it, the having made it is to have no effect at all9! As has een said do not without pre)udice9 mean HI mae #ou an offer: if #ou do not accept it, this letter is not to e used against me@!918 (he parties to litigation proceedings, including aritration, enefit from legal privilege, which guarantees and protects freedom of speech during the trial process! If this were not the case a part# might e put in terror of sa#ing something in court which might lead to a liel action! (here 17 ;155< *! 5
th
18 &aw Commission of India, 18. 4eport, *g no 11/
are limits on this freedom and to e"ceed the oundaries of court eti-uette could amount to contempt of court, ut the o)ective here is control of the process not to place restrictions on the parties@ freedom to pursue a particular cause of action or to present evidence! It is for the )udge to determine what is admissile, oftGtimes after the event when counsel has let the cat out of the ag, resulting in an order to strie offending material from the record, accompanied perhaps # a )udicial reprimand! +here privilege information is disclosed the )udge or aritrator has a dut# to ignore that information!915
C01C&-201 (he concept of admission pla#s a most important role in the law of evidence! A detailed anal#sis of this concept shows that the seleton i!e! the IEA, 1872 provided # Stephen is eing adduced with new flesh and lood # the Fon@le )udges!
(he current legislation gives the leewa# to the )udges for contemporaneous interpretation ut as no sustantive amendments have een made to the Act, lac of clarit# and amiguit# is evident! It is in the interests of )ustice that the amiguities caused # con tradicting authorities to e clarified on the asis of /5th and 18.th reports of law commission of India! (he Fon@le )udges and the learned counsel should e e-uipped with a law which can guide them to the )ustice not rel#ing upon )udicial discretion ut on sound principles of law!
%2%20*3AP+4 19 A>4 and *rivilege, *g no 1
%005- •
Sarar, &aw of Evidence, 17th edition, 2?1?
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+oodroffe and S#ed Amir Ali on Evidence
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*hipson on Evidence, 1/th edition, 2??7
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'urph# on Evidence, 2?1?
•
+igmore on Evidence
•
4atan &al J >hira) &al, (he &aw of Evidence, 2.th Edition
0121E -0&3CE- • • • • •
+estlaw 'anupatra Fein nline &e"is e"is 0stor
