FEATURES

Bradford & Bingley Plc
v Rashid - a Case Where the Without Prejudice Veil 'Was Never There in the First Place'

A discussion of the 'without prejudice' privilege and whether it exists in the absence of a dispute or when the dispute is only as to the quantum, not the liability.

Introduction

It was recently¹ submitted that the without prejudice privilege ('Privilege') did not apply to a letter containing a clear, unequivocal admission of debt (or liability) and a mere request to negotiate repayment of the admitted debt, because there was a lack of dispute even if the letters were indeed marked 'without prejudice'. The recent House of Lords' decision in Bradford & Bingley v Rashid² (hereinafter referred to as 'Re Bradford') confirms that contention. The case of Re Bradford was the first time³ the House of Lords had to consider the admissibility of such letters as evidence in civil proceedings and the vexed question as to whether they were indeed protected by the Privilege. ⁴

Brief Facts of Re Bradford

Re Bradford is a case arising out of a mortgagee's action for an outstanding debt. Bradford & Bingley Plc ('Bradford'), a commercial bank, provided financing for the purchase of a property to one Mr. Rashid ('Rashid') and secured it with a mortgage. As of October 1989, a sum of £50,300 was in arrears and repayable by Rashid. Bradford commenced repossession proceedings and the said property was sold for a sum that left a shortfall owing to Bradford in the sum of £15,583. Bradford then had problems tracing Rashid and no action was taken to recover the said shortfall for over 10 years. On 26 September 2001 an advice centre acting for Rashid wrote to Bradford's solicitors and in their letter, not marked without prejudice, expressly admitted to the outstanding debt of £15,583 in, inter alia, the following terms:

… at present he is not in the position to repay the outstanding balance, owed to you … (emphasis added)

On 4 October 2001 the advice centre again wrote another letter, also not marked without prejudice, making further admission of the debt in, inter alia, the following terms:

… willing to pay approximately £500 towards the outstanding amount as a final settlement … (emphasis added)

Rashid's offer was not accepted by Bradford who then commenced an action to recover their debt of £15,583 outstanding more than 10 years ago. Rashid's sole defence in the action was that the debt was statute barred under
s 20 (1) of Limitation Act of 1980. Bradford in turn sought to rely on the letters dated 26 September 2001 and 4 October 2001 as acknowledgement of the debt under s 29 (5) of the Limitation Act, thereby attempting to displace the defence of limitation raised by Rashid.

The matter proceeded to trial before the District Judge and the main bone of contention was whether the letters sent by the advice centre were admissible in evidence or whether they were excluded under the Privilege. The trial judge held that the letters amounted to a clear and unequivocal acknowledgment of debt under s 29 (5) of the Limitation Act and most importantly, since there was no dispute as to Rashid's indebtedness, the letters were not protected by the Privilege and were therefore admissible in evidence. The District Judge received the letters into evidence and granted judgment in the admitted sum of £15,583 plus statutory interest, in favour of Bradford.

Rashid appealed to the High Court on the ground that that the District Judge erred in law by admitting the said letters into evidence for they were written in the course of negotiations and therefore protected by the Privilege, albeit they were not marked 'without prejudice'. Judge Hawkesworth, QC, allowed Rashid's appeal and held that the letters had been written in the course of negotiation and therefore were inadmissible. Bradford's claim was therefore dismissed, as it was statute barred.

Bradford appealed to the Court of Appeal but their appeal was dismissed⁵ (without even calling for counsel for Rashid to reply). The Court of Appeal was unanimous in holding that the letters, although amounting to clear and unequivocal admission of indebtedness, were protected by the Privilege, for in their view these letters were written in the course of negotiation and therefore were held to be inadmissible. Bradford then appealed to the House of Lords. The House delivered their judgment on 12 July 2006, reversing the Court of Appeal's decision and reinstating the judgment of the District Judge.

The Issues Before the House of Lords in Re Bradford

The House of Lords ('House') in Re Bradford were concerned, inter alia, with the following two important questions of general public interest:
1 Whether letters written containing a clear and unequivocal admission of indebtedness amounted to an 'acknowledgement' under s 29 (5) of the Limitation Act 1980 even if the quantum was in dispute? and

2 Whether letters written containing clear and unequivocal admission of an existing debt but seeking time for repayment were protected by the Privilege and therefore inadmissible for the purposes of s 29 (5) of the Limitation Act 1980?⁶

The Principles Laid by the House in Re Bradford

With regard to the first question, the House was unanimous in affirming the law as stated by Lord Diplock L J in Dungate⁷, that an acknowledgement for the purposes of s 29 (5) of the Limitation Act was 'not confined to admissions of debts that were indisputable as to quantum as well as liability'. Therefore, so long as there was clear and unequivocal admission of indebtedness or liability, it amounted to an acknowledgment under s 29 (5) of the Limitation Act even though there was a dispute as to the actual quantum of indebtedness.

With regard to the second question, their Lordships were unanimous on the facts that the letters amounted to an express and unequivocal admission of debt and that they were admissible in evidence. However they differed in their reasoning as to why the Privilege did not apply to an acknowledgement under s 29 (5) of the Limitation Act. Their Lordships' reasoning can be summarised as follows:

a Lord Hoffmann was of the solitary view,⁸ and sought to provide the 'solution' by laying down the principle, that the Privilege, which is based on public principle did not apply to 'the use of a statement as an acknowledgement for the purposes of section 29 (5) of the Limitation Act'.⁹ His Lordship sought to draw a distinction between an admission being introduced as an acknowledgement under s 29 (5) of the Limitation Act merely as a relevant 'statement of fact'¹⁰ and when the admission was being admitted to prove the truth of what is stated therein. In his Lordship's view, since the admissions in Re Bradford were merely being introduced as acknowledgements (ie, a statement of fact) for the purposes of s 29 (5) of the Limitation Act rather than as the truth of what was stated therein, the Privilege was not applicable.¹¹

b Lord Hope decided the issue in line with Scottish Law¹² that the Privilege did not apply to clear admissions or statements of fact that did not form part of an offer to compromise.¹³ On the facts his Lordship held the letters were not part of any offer to compromise but comprised of clear and unequivocal statement of fact that the debt was admitted. In the premises, his Lordship held that the Privilege was not applicable in such circumstances.

c The majority of the Law Lords comprising of Lord Brown, Lord Walker and Lord Mance, held that the Privilege may apply to an acknowledgement for the purpose of s 29 (5) of the Limitation Act provided there was a dispute of liability and when the acknowledgement was written with the view to compromise the disputed liability. On the facts, the majority of the Lordships held that the letters¹⁴ written amounted to an 'express and unequivocal' admission of liability and indebtedness and a mere discussion for the repayment of 'an admitted liability' and therefore, their Lordships held that the privilege was not applicable in such circumstances.

The Effect of a Lack of Dispute in 'Without Prejudice' Communications as Laid in Re Bradford

The majority of their Lordships reiterated the principle that for any communications to be protected by the Privilege there must be a dispute of liability and the communications must be written for the purpose of compromise of the disputed liability.¹⁵ Lord Mance categorically affirmed the same as the principle of law in the following authoritative terms:¹⁶

… The existence of a dispute and of an attempt to compromise it is at the heart of the rule whereby evidence may be excluded (or disclosure of material precluded) as 'without prejudice'… (emphasis added)

Lord Brown at page 2090 [76] B-C succinctly explained why the Privilege was not applicable to the letters in principle and under what circumstances it would have applied in the following words:

…In short, therefore, some acknowledgements will indeed attract without prejudice protection. But these will be cases where the extent of the liability is genuinely in dispute and the parties are attempting to settle that difference. Had Mr. Rashid, for example, in fact been seeking to question the sufficiency of the sum obtained from the mortgagee's sale of the property and had the correspondence been devoted to resolving that particular issue, without prejudice protection might well have applied. But that simply was not the case. The correspondence treated the debt as an undisputed liability and dealt only with whether, when and to what extent Mr Rashid could meet that liability. The question before your Lordships is whether in those circumstances the without prejudice rule should be extended at the expense of the statutory provision for acknowledgement. For reasons given I would hold not … (emphasis added)

In Re Bradford the House of Lords for the first time unequivocally and directly dealt with the principle that for the without prejudice rule to apply there must be an existing dispute and the communication must have been an attempt to compromise or settle the existing dispute.

It follows that an existence of a dispute is a pre-condition for the application of the Privilege.¹⁷ It is humbly submitted that it would be a clear misconception to suggest that the public policy of promoting settlement, which underlies the Privilege, is applicable when there is a lack of dispute of liability or indebtedness. When liability or indebtedness is clearly and unequivocally admitted, it will follow that there is nothing left to compromise or to negotiate save as to the payment of the admitted sum and such communications merely to negotiate the mode of repayment cannot be covered by the Privilege.¹⁸

Under this premise, their Lordships' ruling in Re Bradford is commendable and a very sound practical principle. It would certainly not be in the public interest for relevant and crucial evidence to be disguised as 'without prejudice' documents and attempted to be excluded at trial or other proceedings and justice therefore denied to the aggrieved party.¹⁹

However, their Lordships left open the question as to whether the privilege would be applicable when there was a clear and unequivocal admission of liability but a dispute only as to the quantum and the letters were written to compromise the dispute on the quantum. It is submitted that in such a case there is no reason why the public policy, which justifies the promotion of negotiation and compromise of the dispute (liability or quantum), should not be applicable for there is indeed a genuine dispute, albeit only towards quantum.²⁰

It is submitted that so long as there is a bona fide dispute (regardless as whether to quantum or liability) the public policy underlying the privilege ought to be invoked to encourage the settlement or compromise of such a dispute and to protect all communications - with or without the label 'without prejudice' - made in an attempt to resolve the outstanding dispute.

Re Bradford - an Approval and Application of Principles Laid in Re Daintrey Ex p. Holt ²¹

In Re Bradford, the Law Lords proceeded on the basis that the question as to whether letters admitting liability but requesting time for repayment were covered by the Privilege, was a novel question which was not previously argued or decided.²² With respect, it is submitted, such is actually not the case as the same issue arose more than a century ago and was decided by the English Divisional Court in Re Daintrey on facts and principles which were similar to those in Re Bradford.

In Re Daintrey, the petitioner in bankruptcy proceedings sought to rely on a letter marked 'without prejudice' and written by the judgment debtor which unequivocally admitted the debt owed to establish an act of bankruptcy under s 4 (1) of the Bankruptcy Act of 1883.²³ Its admission was objected to on the basis that the letter was marked 'without prejudice' and therefore privileged and could not be looked at for any purpose.²⁴ The Registrar accepted the argument and dismissed the petition. The petitioning creditor appealed to the Divisional Court of the Queen's Bench, which allowed the appeal and held that the letter although marked 'without prejudice' was admissible. In particular, the following dicta of Vaughan William, J, (delivering a single judgment of the court) is instructive:

… In my opinion, the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or in negotiation with another, and terms are offered for the settlement of the dispute or negotiations, and it seems to me that the judge must necessarily be entitled to look at the document in order to determine whether the conditions under which alone the rule applies exist. The rule is a rule adopted to enable disputants without prejudice to engage in discussion for the purpose of arriving at terms of peace, and unless there is a dispute or negotiation and an offer, the rule has no application …²⁵ (emphasis added)

In Re Bradford, more than a century later, Lord Mance at page 2091[81] B-E echoed the following sentiments, which were strikingly similar to that expressed by the judge in Re Daintrey:

… The existence of a dispute and of an attempt to compromise it are at the heart of the rule whereby evidence may be excluded (or disclosure of material precluded) as "without prejudice"… The rule does not of course depend upon disputants already being engaged in litigation. But there must as a matter of law be a real dispute capable of settlement in the sense of compromise (rather than in the sense of simple payment or satisfaction) …²⁶ (emphasis added)

It is therefore humbly submitted that the principle laid by the majority of the House of Lords in Re Bradford that the Privilege is inapplicable unless there is a dispute is none other than an affirmation of the principle stated by the judge in Re Daintrey. It is unfortunate that due recognition of the dicta of Vaughan Williams has not been accorded.²⁷

Re Daintrey and Now Re Bradford - Classic Cases of the 'Veil was Never There in the First Place'

In Unilever,²⁸ Robert Walker, LJ, distinguished Re Daintrey as a case where 'the real point of the decision was that the veil was never there in the first place'. Although his Lordship did not elaborate, it is plausible that his opinion must have been based on the fact that in Re Daintrey the letter that was sought to be admitted in bankruptcy contained a clear and unequivocal admission of liability and indebtedness evincing a total lack of dispute thereby displacing the Privilege at the outset.²⁹ Re Bradford is yet another classic example of a case where the 'veil was never there in the first place' because there was no dispute of liability or quantum to invoke the Privilege in the first place.

Conclusion

It is submitted that Re Bradford is a very recent and modern example of a case where the 'veil was never there in the first place' for the obvious reason that there was no dispute. It would have been a misconception to suggest that the veil would have been applicable to letters written merely to negotiate terms of repayment of an undisputed debt.³⁰ Re Bradford, it is reiterated, sets the law on its right and just path by defining the pre-requisite for the application of the Privilege.³¹ Otherwise the Privilege would be subject to abuse by debtors who had no defence whatsoever to any purported action but would seek to extract concessions as to terms of repayment of the indisputable indebtedness and prejudice the creditors by invoking (or even labeling their communications as 'without prejudice') the Privilege as a cloak to exclude important and relevant evidence at trial or summary proceedings when their unilateral or unreasonable demands are not acceded to.³²

The letters were clearly by their unequivocal admission of debt very prejudicial to the person to whom it was addressed - ie, Bradford - as it amounted to an clear acknowledgement of debt and would have deprived Bradford of a defence under s 29(5) of the Limitation Act if not admitted. It is unjust for Rashid to attempt to rely on the Limitation Act to debar the legitimate and indisputable claim by Bradford but as the same time attempt to extract time for repayment under the protection of the Privilege. It would have certainly been unfair and very prejudicial to Bradford to whom the letters were addressed to have been denied admissibility of these letters, written by Rashid who was merely seeking time for repayment, to rebut the statutory defence raised by Rashid. The 'Re Daintrey exception' would have also been applicable in Re Bradford although their Lordships did not consider it for they decided the case on first principle - ie, that the privilege did not apply when there is no dispute and the letters were not written to compromise a disputed liability but merely to negotiate repayment of an undisputed liability.

In conclusion, Re Bradford is also an important case for it serves as a timely reminder to civil practitioners in the whole Commonwealth to refrain from indiscriminately affixing the label 'without prejudice' to communications to which the privilege is not applicable at all.

S. Magintharan³³
S. Magin & Co
E-mail: magin@nmlawcorp.com.sg

Notes

1 By the present author in the article Lack of dispute and its effect on the Without Prejudice Privilege in Common Law and s. 23 of the Evidence Acts of Singapore and Malaysia [2006], Vol. 25 CJQ 367 at pages 374 & 378 (hereinafter referred to as 'the article').

2 [2006] 1 WLR 2066 delivered on 12 Jul 2006.

3 The principles stated in Re Bradford were recently applied in England in Barneston v Framlington Group Ltd & Anor [2007] 1 WLR 2443. In the Commonwealth jurisdictions of Singapore and Malaysia the same principle stated by their Lordships in Re Bradford were laid down more than 20 years ago by the Singapore Court of Appeal in Re Sunshine [1978] 1 M.L. J 57 and the Malaysian Federal Court in Ted Bates (M) Shd Bhd v Balbir Singh Jholl [1979] 2 M.L.J 257. See the recent Singapore Court of Appeal decisions of Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd [2006] 4 SLR 807; Greenline-Onyx Envirotech Phils, Inc v Otto Systems Singapore Pte Ltd [2007] 3 SLR 40 and the High Court decision of Kim Eng Securities Pte Ltd v Tan Suan Khee [2007] 3 SLR 195 wherein the principles stated in Re Bradford were approved and applied without any reference to Re Sunshine or Ted Bates (M) Shd Bhd, supra. See also the important Singapore High Court decision of Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Pte Ltd [2007] 2 SLR 433, wherein Sundaresh Menon JC at [48] to [50] comprehensively discussed the principles stated in Re Bradford and held it to be equally applicable to cases where only the quantum is in dispute.

4 Lord Hoffmann at page 2069 [3] E-F expressed the view that the issue was a 'significant omission' and could have been taken, but not taken, on the facts of Spencer v Hammerde [1922] 2 AC 507 and Dungate v Dungate [1965] 1 WLR1477; Lord Brown at page 2089 [72] B-C was struck with the 'apparent novelty' of the question as to whether an admission was protected by the without prejudice privilege.

5 [2005] EWCA Civ 1080.

6 Although their Lordships' House were in fact concerned with the specific question as to whether the letters were admissible as an acknowledgment under section 29 (5) of the Limitation Act, the majority of their Lordships (per Lord Walker, Lord Brown and Lord Mance) took pain to rationalise and set out the general principle that the Privilege did not apply to communications when there was an express and unequivocal admission of liability and were mere negotiations for repayment of an admitted debt.
7 [1965] 1 WLR 1477 at page 1487E-F.

8 At page 2072 [16] D-F.

9 His Lordship, at page 2070 [9] G-H, was concerned that there was a conflict between the public policy of the Privilege and the public policy relating to the admissibility of an acknowledgement of debt for the purposes of s. 29 (5) of the Limitation Act. His Lordship held that it 'was therefore necessary to find a principle which would preserve the acknowledgement rule without doing damage to the without prejudice rule'.

10 At page 2072 [17] G-H, in the sense of res gestae in criminal proceedings, as per Subramaniam v Public Prosecutor [1965] 1 WLR 965.

11 His Lordship first expressed this view in the Court of Appeal in Muller v Linsley & Mortimer [1996] PNLR 74. His Lordship's view was applied subsequently in Dora Simper [2000] 2 B.C.L.C. 561, CA; Murrell v Healy [2001] 4 All ER 345, 350; Unilever Plc v Procter & Gamble [2001]1 All ER 783, CA; Prudential Insurance Company of America v Prudential Assurance Company Ltd [2003] EWCA Civ 1154. However, his Lordship's view was rightfully, it is submitted, doubted by the Lord Walker at page 2081 [42]B-D and Lord Mance at 2096 [93]C-D in Re Bradford. In view of the doubts expressed by their Lordships in Re Bradford on the 'solution' sought to be laid by Lord Hoffman, it is respectfully submitted, that such a principle is doubtful and ought to not to be applied in future.

12 Lord Hope at page 2075 [25] C-E. And it seems also in Canadian law. The following Scottish and Canadian cases and were cited by Lord Hope as laying down the principle: Watson-Towers Ltd v McPhail [1986] S.L.T 617; Daks Simpson Group Plc v Kioper [1994] S.L.T. 689; and Richardson v Quercus Ltd [1999] S.L.T. 596 and the Canadian case of Kirshaum v Our Voices Publishing Co [1972] 1 O.R. 737. See also 'the article' at page 374 at fn 33.

13 His Lordship was of the view that there was nothing in the letters which formed part of an offer to compromise. Instead his Lordship held that the letters amounted to a statement of fact that the debt was admitted and they were not written as part of an offer to compromise but a mere request to pay the admitted debt by installments. Per Lord Hope at page 2079 [36] F-H. See also 'the article', page 374 at fn 33, where the Scottish position was highlighted by the present author.

14 It must be noted that the letters concerned in Re Bradford were not marked without prejudice but it is submitted that the 'label' did not make and would not have made any difference to the principle enunciated by the majority of their Lordships in Re Bradford. It is reiterated that in common law and also under section 23 of the Evidence Acts of Malaysia and Singapore it is the purpose for which the letters were written rather than the label attached (or not attached) that matters when considering if the Privilege applied. See also 'the article' at pages 371 & 378.

15 A view expressed by the present author in the article at pages 374 & 378. In fact the present author reiterates his view expressed at page 378 of 'the article' that the label 'without prejudice', even if affixed, is a 'misnomer and irrelevant' when there is an express and unequivocal admission of liability.

16 At page 2091[81]A-B. Their Lordships, Lord Hope at page 2078 [33] C-E, and Lord Brown (with whom Lord Walker concurred) at page 2089 [73] E-F expressed similar views.

17 In the classic words of Lord Mance at page 2091 [8] A-B in Re Bradford, - 'the existence of a dispute and of an attempt to compromise it are at the heart of the rule whereby evidence may be excluded (or disclosure of material precluded) as "without prejudice"'.

18 A view expressed by the present author in 'the article' at page 374. The majority of the Lordships expressed similarly sentiments in Re Bradford. Per Lord Hope at page 2078 [33] D-G; Lord Brown at page 2089 [73] C-F and Lord Mance at pages 2093 [87] D-E & [88] G-H.

19 In this respect it is rather innovative, robust and salutary that the Malaysian High Courts had even prior to Re Bradford set out the rule that the Privilege did not apply to letters containing a clear and unequivocal admission of liability and request for repayments in summary judgment proceedings; the Malaysian High Court admitted the letters and granted summary judgments based on admissions made in letters which were of a similar nature to that in Re Bradford. See 'the article' at page 372 and fn 32 & 40 and the following Malaysian High Court decisions - Wong Nget Thau & Another v Tay Choo Foo [1994] 3 M.L.J 723; Boss S/o Ramasamy v Penang Port Sdn Bhd & Another [1996] 5 M.L.J. 511 & Daya Anika Sdn Bhd v Kuan Ah Hock [1998] 6 M.L.J. 53.

20 There does not seem to be any authority on this point but support can be gleaned from the judgment of Lord Brown in Re Bradford at page 2090 [76] B-D wherein his Lordship explained the scenario when the privilege would have applied on the facts in the following terms: '…Had Mr. Rashid, for example, in fact been seeking to question the sufficiency of the sum obtained from the mortgagee's sale of the property and had the correspondence been devoted to resolving that particular issue, without prejudice protection might well have applied..'.

21 [1891-94] All ER 209. In Sin Lian Heng Construction Pte Ltd v Singapore Telecommunications Pte Ltd [2007] 2 SLR 433 [40] to [50], Sundaresh Menon JC relied on the dicta of Lord Brown to rightly arrive at the conclusion that the without prejudice veil was equally applicable when there was only dispute relating to quantum and not liability.

22 See fn 4 above.

23 In contrast, in Re Bradford, the claimants were seeking to rely on the letters to establish an acknowledgement of debt for the purpose of s. 29 (5) of the Limitation Act. But nevertheless the point is that both were seeking to admit the documents as evidence to establish their case.

24 It must be noted that unlike the letters in Re Bradford (which were not marked 'without prejudice' the letter in Re Daintrey was expressly marked 'without prejudice'. However, it is reiterated that the label 'without prejudice' or lack of it, is not in anyway determinative of the issue. See Rush & Tompkins v Greater London Council [1988] 3 All ER 737 per Lord Griffiths at page 740; See also 'the article' at page 371.

25 [1891-94] All ER 209 at page 211H-I. It must be noted that the letter was held admissible as an exception to the Privilege on the basis that the Privilege '… has no application to a document which in its nature may prejudice the person to whom it is addressed' per Vaugham William J in Re Daintrey at page 212 A-B.
26 See also the same sentiments expressed by Lord Hope in Re Bradford at page 2078 [33] D-F and also Lord Brown (with whom Lord Walker concurred) at page 2089 [73] E-F.

27 A view also previously expressed by the present author in 'the article' at fn 35. As pointed out in 'the article' at fn 40, the relevant and important dicta of Vaugham William J in Re Daintrey that the privilege was inapplicable unless there was a dispute was in fact approved and applied by the English Court of Appeal in South Shropshire District Council v Amos [1986] 1 W.L.R. 1271 and Buckinghamshire County Council v Moran [1990] 1 Ch. 623. It is unfortunate that neither Re Daintrey (which set out this principle) nor the English Court of Appeal decisions were cited as authority for the principle affirmed by the majority of their Lordships in Re Bradford.

28 [2001] 1 All E.R. 783 at page 795 G-H.

29 It is submitted that this is precisely what the majority of their Lordships decided in Re Bradford. It must be noted that in Re Daintrey, the judge did not rule the letter admissible on the basis that the 'veil was not there in the first place' but rather strangely his Lordship held, despite the clear and unequivocal admission contained in the letter of liability and indebtedness, that there was indeed a dispute (at page 212B-C) for the veil to apply. His Lordship however, held that the letter fell within the exception that 'the rule has no application to a document which in its nature may prejudice the person to whom it is addressed'. With respect, the letter in Re Daintrey ought to have been admitted on the basis that it was not written to negotiate or compromise any existing dispute for there was in fact no dispute as the debt was clearly and unequivocally admitted. Re Daintrey was indeed, as correctly pointed out by Robert Walker LJ in Unilever, a case where the 'veil was not there in the first place' (ie, the privilege was not applicable in the first place because there was no dispute and the letter was not written to compromise the disputed liability). See also Phipson on Evidence (16th Ed., Thomson Sweet & Maxwell 2005) at paragraph 24-37, referring to the 'Re Daintrey exception' as authority for the position that the rule has no application to a document which in its nature may prejudice the person to whom it is addressed. It is submitted that Re Daintrey is authority not only for the exception but also for the basic principle, now affirmed by the House of Lords in Re Bradford, that the privilege is not applicable at all when there is no dispute and the letters were not written to compromise the disputed liability.

30 Re Bradford is also of the highest persuasive authority (if not binding) in the common law jurisdictions. See also the similar cases in the Malaysia and Singapore referred to in 'the article' at pages 375 & 376 and fn 40; in particular the following: Ted Bates (M) Shd Bhd [1979] 2 M.L.J. 257, Federal Court; Wong Nget Thau & [1994] 3 M.L.J. 723; Daya Anika Sdn Bhd [1998] 6 M.L.J. 53; Boss S/o Ramasamy [1996] 5 M.L.J. 511. and the Singapore Court of Appeal decision of Re Sunshine (Pte) Ltd [1998] 1 M.L.J. 57.

31 It is also humbly submitted that an alternative basis for admitting the letters in Re Bradford would have been the 'Re Daintrey exception' (a term coined by the learned authors in Phipson on Evidence (16th Ed. London Sweet & Maxwell 2005 at page 666 paragraph 24-37).

32 It is also humbly submitted that the 'Re Daintrey exception' is nothing more than an act of impropriety falling within the established 'unambiguous impropriety' exception although it has not been discussed in that context in any subsequent cases and seems to stand out as an anomaly. What is really telling is that Re Daintrey was in fact referred to in Re Bradford but none of their Lordships dealt with the real point for which it really stands for or disapproved it. In fact, of their Lordships, only Lord Hoffman at page 2073 [17] A-B made any reference to Re Daintrey but even then it was in support of his Lordship's contention that a statement amounting to an act of bankruptcy was admissible 'not in the truth of any fact which it asserts or admits, but simply in the fact that it was made'. The learned authors in Phipson on Evidence (16th Ed. Sweet & Maxwell 2005) at paragraph 24-37 seem to treat the 'Re Daintrey exception' as an anomaly and suggest at page 667 - paragraph 39 that 'it is unlikely that cases will in future be decided with reference to Re Daintrey'. With all due respect to the learned authors, the Re Daintrey exception has been cited and approved and till today stands as authority as an exception to the without prejudice rule. However, save as to being authority for the exception that the Privilege would not apply to an act of bankruptcy, the 'Re Daintrey exception' has not been properly considered or explained by any subsequent decision. It is humbly submitted that the 'Re Daintrey exception' is another useful example of the unambiguous impropriety exception and should be re-considered and affirmed, even though the ambit of the exception in recent cases seemed guarded and limited to exceptional circumstances. See the following cases concerning the 'unambiguous impropriety' exception - Forster v Friedland, Unreported, November 10, 1992, CA wherein Hoffman LJ apparently coined the term 'unambiguous impropriety'; Fazil-Alizadh v Nikbin, The Times, March 19, 1988; Dora v Simper [2000] 2 B.C.L.C. 561, CA; Savings and Investment Bank (SIB) Ltd v Fincken [2004] 1 WLR 667.

33 LLB (Hons) Essex, Barrister-at-Law of the Inner Temple, Advocate & Solicitor of the Supreme Court of Singapore.