Evidence

Admissibility - draft expert's report marked 'without prejudice' disclosed for purpose of settlement negotiations - no settlement - report inadmissible for purpose of quantifying interest on award of damages UYB Ltd v British Railways Board; C.A; (Kennedy, Waller and Jonathan Parker LJJ): 19 October 2000

In December 1995 the claimants sued the defendants for damages for breach of contract and in October 1996 the claimants' accountant's draft report indicating the quantum of damages was disclosed to the defendants on a without prejudice basis to negotiate a settlement, which subsequently broke down.

After the trial, on the question of assessment of interest the trial judge having refused to admit the draft report on the ground that it was a privileged document held that the claim had not been quantified until the final report of the expert had been served in December 1998 and disallowed interest from the date of issue of the claim form to December 1998.

The claimants appealed on the grounds that the policy of law should admit negotiations at the trial to prove what was said at the trial was untrue.

Kim Lewison QC and Gary Cowen (instructed by Eversheds) for UYB.

Jonathan Gaunt QC and Jonathan Small (instructed by Kennedys) for BRS.

Held, dismissing the appeal, that the public policy of the law was to enable parties to negotiate settlements and the protection given to the without prejudice discussions could not be relaxed since the assessment of interest period did not justify removal of such a protection; and that the draft report submitted for without prejudice negotiations was rightly held inadmissible for assessing the period of interest since a draft report was not a final report.