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 be rendered irrelevant

A. If it is expressly intended to be irrelevant

B. Under circumstances from which the Court can infer that the parties agree that evidence
of it should not be given

Lord Mansfiely fabulously 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 the question whether anything is due. So, the purpose of this section is to, that
the doer should not be shut against compromise, when a man offers to compromise a claim, he
does not thereby necessarily admit it, but simply agrees to pay so much to get rid of the action.1

A. Expressly intended to be irrelevant (Without Prejudice):

The reasoning behind this conception is referred as without prejudice privilege.2 The
juridicial basis of the rule is part Contract and part Public Policy.3 Without Prejudice privilege is
seen as a form of privilege and not a substantive privilege4
The first question is to determine what communications attract without prejudice privilege.
Correspondence will only be protected by without prejudice privilege if it is written for the
purpose of a genuine attempt to compromise a dispute between the parties. It is not a
precondition that the correspondence bears the heading without prejudice. There are some
circumstances in which the words are used but where the documents do not attract without
prejudice privilege.5
1. Where the party writing party writing was not involved in genuine settlement
negotiations.6

1 Sir John Woodroffe and Syed Amir Ali on Law of Evidence (18th Edition, Vol I), Pg no 1453.

2 Re River Steamer Co (1971) LR 6 Ch 822 (James LJ : The Words without prejudice simply means this: I make
you an offer, if you do not accept it, this letter is not to be used against me); Walker V Wilsher [1889] 23 QBD 337
(Mellish LJ: they are tantamount to saying, I make you an offer which you may accept or not, as you like; but, if
you do not accept it, my having made it, is to have no effect at all).

3 The Common Law Library, Phipson on Evidence(16th Edition), Pgno:655

4 Lawyers need not disclose correspondence with their clients, S. 126: Professional Communications,
Indian Evidence Act, 1872

5 The Common Law Library, Phipson on Evidence(16th Edition), Pgno:656

 2. Where although the words were used, they were used in circumstances which had nothing
to do with negotiations.7
3. Where the words are used in completely different sense.8
4. There are circumstances in which the correspondence is initiated with a view to
settlement but the parties do not intend that the correspondence should be without
prejudice.9

B. Under circumstances from which the Court can infer that the parties agreed that
evidence of it should not be given.

As it has already stated that, It is not a precondition that the correspondence bears the heading
without prejudice, There are some circumstances in which the words are used but where the
documents do not attract without prejudice privilege. The converse of it follows that, if it is clear
from the surrounding circumstances that the parties were seeking to compromise the action,
evidence of the content of those negotiations will, as a general rule, not be admissible.

In a case related to suit for rent10, the material evidence was that of plaintiffs pleader who
deposed that he had two interviews with one of the defendants, once about a month before the
suit when a settlement was suggested viz, diminution of the interest and again on the day of the
institution of the suit when the pleader was asked to make a compromise, it was held that as there
was admittedly no express condition that evidence of the interviews should not be given, and it

6 In re Daintrey(If the debtor gives notice to any of his creditors that he has suspended or that he is about to suspend
payment of his debts. As such letter, in its nature, may prejudice the person to whom it is addressed, it may be
looked at by the court in order to decide whether or not it amounts to an act of bankruptcy)

7 The Common Law Library, Phipson on Evidence(16th Edition), Pgno:656 (Surveyors reports, for
example, are sometimes headed without prejudice, although they have nothing to do with negotiations.)

8 Council of Peterborough V Mancetter Developments [1996] E.G.C.S 50 (from the context in which "without
prejudice" was used in the letter and other subsequent correspondence, the phrase was clearly indicating an intention
to seek compromise without giving up the right to seek redress through the courts.)

9 Dixon Stores Group V Thames Television [1993] 1 All E.R. 349 (In a case pertaining to television programmed of
defamatory nature, it was held that where a letter was written as a reply to a "without prejudice" letter, or was part of
a continuing sequence of negotiations, then it would be privileged. In this case the letters had been written long after
negotiations and the "without prejudice" correspondence had ceased. It followed that they were not privileged and
could be used without P's consent.)

10 Meajan V Alimuddin 44 C 130; 20 CWN 1217

could not be inferred from the circumstances that the parties had so agreed, the evidence could
not be excluded.

In Cutts V Head and another11a case involving the access over the defendants land to a fishery
owned by the plaintiff, the solicitors of the plaintiff sent a letter titled without prejudice for
seeking settlement

"Should the above proposals, as a whole, not recommend themselves to your clients we
would
respectfully suggest that they give further consideration to those relating to damages. These
are
put forward to enable the real issue, that of access, to be dealt with more effectively, and in
the
event of this being unacceptable to your clients, we reserve the right to bring this letter to the
notice of the judge on the issue of costs.

The Court of Chancery denied to take this letter into consideration while awarding the costs, but
the Court of Appeal expressed the opinion that the Chancery Courts decision to deny the
admission of such letter is flawed as based on the circumstances the court could reasonably infer
that it was not intention of the parties to court should not admit it.12

The 185th Law Commission of India, elaborately discussing the issue and considering the recent
developments and the need to address the lapses in the existing provisions suggested that Sec. 23
should be as follows:

23 (1) In civil cases, no admission is relevant:

(a) if it is made either upon an express condition that evidence of it is not to be given; or

(b) 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 be given,

unless the party who made the admission and the party in whose favour the admission
is made agree that evidence be given, or evidence as to the admission becomes

11 [1984] 2 W.L.R. 349

12 [1984] 2 W.L.R. 349, (As a practical matter, a consciousness of a risk as to costs if reasonable offers are refused
can only encourage settlement whilst, on the other hand, it is hard to imagine anything more calculated to encourage
obstinacy and unreasonableness than the comfortable knowledge that a litigant can refuse with impunity whatever
may be offered to him even if it is as much as or more than everything to which he is entitled in the action.)
 necessary to ascertain if there was at all a settlement or compromise or to explain any
delay where a question of delay is raised;

(2) Such an admission which is not relevant under sub-section (1) may be relevant in so
far as it touches upon an issue between the person who made the admission and a third
party to the admission.

(3) Nothing in this section shall exempt;

(a) any legal practitioner from giving evidence of any matter of which he may be
compelled to give evidence under section 126; or

(b) a person who made a publication, from giving evidence of any matter of
which he may be required to give evidence under section 132 A.

Explanation I: legal practitioner as used in this section shall have the meaning
assigned to it in Explanation 2 to section 126.
Explanation II: publication as used in this section shall have the meaning
assigned to it in para (a) of the Explanation to section 132 A. 13

We may note that this does not affect the operation of Order 23, Rule 3, Code of Civil Procedure,
1908.14

CASE ANALYSIS

Rush & Tompkins Ltd V Greater London Council15

Facts in Brief: Rush & Tompkins were employed by the GLC as main contractors to build a
housing estate. They employed a company trading as Carey Contractors as sub-contractors to do
work on the site. Carey Contractors made a loss and expense claim against Rush & Tompkins
which the GLC refused to pay. Rush & Tompkins commenced proceedings against both the
GLC and Carey Contractors. Against the GLC it claimed a declaration that it was entitled to be
indemnified against the claim by Carey Contractors and against both defendants it sought an
inquiry as to the amount to which Carey Contractors were entitled. After without prejudice
negotiations, Rush & Tompkins concluded a global settlement with the GLC under which it was
paid 1.2 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 any claims from its sub-contractors. Carey Contractors
pursued its claim against Rush & Tompkins and sought discovery of the documents containing
the without prejudice negotiations in order to ascertain what part of the 1.2 million had been

13 Law Commission of India, 185th Report, Pg no 121

14Law Commission of India, 69th Report, Pg no 179

15 [1989] A.C. 1280

allocated to its loss and expense claim.( it would constitute as an admission by Rush &
Tompkins)

Issues: Whether Rush & Tompkins can claim without prejudice privilege?

Held: Lord Griffiths stated that as a general rule the without prejudice rule renders
inadmissible in any subsequent litigation connected with the same subject matter proof of any
admissions made in a genuine attempt to reach a settlement.
House of Lords expressed the opinion that it is a matter of public policy that settlements of this
sort should not be disclosed or revealed so as to facilitate the negotiation or settlement without
seeking litigation.

Muller V Linsley & Mortimer16

Facts in Brief: The plaintiff on the advice of defendants (Solicitors) in order to protect his shares
in Sagesoft ltd, in which he was a company director, had had his shares out of the reach of the
compulsory sale provision by transferring them to his wife. Under the articles, the board was
obliged to register such transfer if presented duly stamped but due to an error committed by the
Solicitors the members of the board rejected the transfer of shares, due to which Muller lost as
many as 4 million pounds, later he initiated proceedings against the company and in the course
of settlement, received some compensation. He now seeks indemnity against the solicitors,
solicitors seek disclosure of the documents of negotiations between Muller and the Company.

Issues: Whether the Documents of negotiation between Muller and the Company are
safeguarded by without prejudice privilege from disclosure?

Held:

Hoffmann LJ

The without prejudice correspondence forms part of that conduct and its relevance lies in the
light it may throw on
whether the Mullers acted reasonably in concluding the ultimate settlement and not in its
admissibility to establish
the truth of any express or implied admissions it may contain. On the contrary, any use which the
defendants. may wish to make of such admissions is likely to take the form of asserting that they
were not true and that it was therefore unreasonable to make them.. It
would, in my judgment, be inconsistent to give the indemnifier the benefit of this rule but to deny
him the material necessary to make it effective.
Swinton Thomas, Leggatt L.JJ. opined that by putting in issue the reasonableness of their own
conduct and disclosing the letter before action and the agreement the plaintiffs had also waived
any privilege that attached.

16 [1996] P.N.L.R 74
 Mc Taggart V Mc Taggart17

Facts in Brief: Husband petitioned for divorce on the ground of desertion by the wife without
cause for a period at least three years immediately preceding the presentation of the claim. In the
course of proceedings before the commissioner both the husband and wife mentioned about an
interview with a probation officer. The Commissioner, even though expressed some doubt on
whether the evidence sought to be tendered by the probation officer is admissible, still found it
necessary to admit his evidence in the interests of justice. The Probation officer gave an evidence
which faovured the husband on the basis of which the commissioner granted the order of decree
nisi. Wife challenges the order.

Issues: Whether the evidence tendered by the Probation Officer is admissible as the interview
with him is (without prejudice, private or confidential)?

Held:

Denning LJ

The rule as to Without Prejudice communications apply with special force to negotiations for
reconciliation. It applies whenever the dispute has got to such dimensions that litigation is
imminent in all the cases where estrangement has reached the point where parties
consult a probation officer, litigation is imminent. It is clear that there is a dispute which may end
in the Magistrates Court or the divorce court. The probation officer has no privilege of his own
from disclosure.

Literature review:

Confidential overtures of pacification and any other offer or proposition between litigating
parties, expressly or impliedly made without prejudice (see re River Steamer Co. (1871) LR 6.
Ch. 822) are excluded on ground of public policy. Now, if a man says his letter is without
prejudice, that is tantamount to saying: I make you an offer which you may accept or not, as
you like; but if you do not accept it, the having made it is to have no effect at all. As has been
said do not without prejudice mean I make you an offer; if you do not accept it, this letter is
not to be used against me.18

The parties to litigation proceedings, including arbitration, benefit from legal privilege, which
guarantees and protects freedom of speech during the trial process. If this were not the case a
party might be put in terror of saying something in court which might lead to a libel action. There

17 [1949] P. 94

18 Law Commission of India, 185th Report, Pg no 116

are limits on this freedom and to exceed the boundaries of court etiquette could amount to
contempt of court, but the objective 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 judge to
determine what is admissible, oft-times after the event when counsel has let the cat out of the
bag, resulting in an order to strike offending material from the record, accompanied perhaps by a
judicial reprimand. Where privilege information is disclosed the judge or arbitrator has a duty to
ignore that information.19

CONCLUSION

The concept of admission plays a most important role in the law of evidence. A detailed analysis
of this concept shows that the skeleton i.e. the IEA, 1872 provided by Stephen is being adduced
with new flesh and blood by the Honble judges.

The current legislation gives the leeway to the judges for contemporaneous interpretation but as
no substantive amendments have been made to the Act, lack of clarity and ambiguity is evident.
It is in the interests of justice that the ambiguities caused by contradicting authorities to be
clarified on the basis of 69th and 185th reports of law commission of India. The Honble judges
and the learned counsel should be equipped with a law which can guide them to the justice not
relying upon judicial discretion but on sound principles of law.

BIBLIOGRAPHY
19 ADR and Privilege, Pg no 1
BOOKS:

Sarkar, Law of Evidence, 17th edition, 2010

Woodroffe and Syed Amir Ali on Evidence

Phipson on Evidence, 16th edition, 2007

Murphy on Evidence, 2010

Wigmore on Evidence

Ratan Lal & Dhiraj Lal, The Law of Evidence, 25th Edition

ONLINE SOURCES:
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