RESEARCH ON WITHOUT PREJUDICE LETTER

Rule of exclusion.

Section 65 (1)(b)

Section 65 (2)(b)

Seksyen 23 Akta Keterangan 1950 menjelaskan bahawa apa-apa

pengakuan daripada mana-mana pihak adalah tidak relevan sekiranya
pengakuan itu dilakukan dengan syarat tersurat bahawa keterangan itu
tidak boleh dikemukakan seperti yang dipersetujui oleh kedua-dua
pihak. “Seksyen 23 Akta Keterangan - In civil cases no admission is
relevant if it is made, either upon an express condition that evidence of it
is not to be given, or under circumstances from which the court can infer
that the parties agreed together that evidence of it should not be given.”

[52] Di dalam buku Halsbury’s Laws of England, Edisi Ke-4 pada

perenggan 212 yang mengandungi ringkasan ringkas mengenai dengan
komunikasi ‘tanpa prejudis’ seperti berikut:
“Letters written and oral communications made during a dispute
between the parties, which are written or made for the purpose of
settling the dispute, and which are expressed or otherwise provide to
have been made “without prejudice”, cannot generally be admitted in
evidence.”

Noor Asyimah binti Ramli lwn Mohd Riffi bin Adnan [2018] MLJU 935

[53] Di dalam kes Malayan Banking Bhd v Foo See Moi [1981] LNS
95;; [1981] 2 MLJ 17, Chang Min Tat FJ di dalam memberi keputusan
dalam Mahkamah Persekutuan memutuskan:
“It is settled law that letters written without prejudice are inadmissible in
evidence of the negotiations attempted. This is in order not to fetter but
to enlarge the scope of the negotiations, so that a solution acceptable to
both sides can be more easily reached. But it is also settled law that
where the negotiations conducted without prejudice lead to a settlement,
then the letters become admissible in evidence of the terms of the
agreement, unless of course the agreement has become incorporated in
another document which would then be the evidence of the agreement.”

Hence,in our case, there is no settlement.

[54] Di dalam kes Cuffs v Head and Another [1984] 1 AER 597,
Mahkamah Rayuan telah memutuskan seperti berikut mengenai
peraturan surat-surat tanpa prejudis;
“That the rule rests, at least in part, on public policy is clear from many
authorities, and the convenient starting point of the inquiry is the nature
of the underlying policy. It is that parties should be encouraged so 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 (and that includes, of course, as much the failure to
reply to an offer as an actual reply) may be used to their prejudice in the
course of the proceedings.”

[17] Kes HADI BIN HASSAN (supra) juga dirujuk di mana kes ini
menyatakan seperti berikut:-
“7 Now, all letters written and all oral communications made
between the parties during a dispute for the purpose of settling the
dispute (Grace v Baynton (1877) 21 Sol Jo 631 Kitcat v Sharp (1882)
48 LT 64; Re Daintrey, ex parte Holt (1893) 2 QB 116 and E Hulton &
Co Ltd v Chadwick, Taylor & Co (1919) 122 LT 66, HL) which are
expressed or proved to have been made ‘without prejudice’ cannot, in
law, be admitted in evidence (Waldridge v Kennison (1794) 1 Esp
143; Paddock v Forrester (1842) 3 Scott NR 715; Whiffen v
Hartwright (1848) 11 Beav 111; Hoghton v Hoghton (1852) 15 Beav
278; Re Daintrey, ex parte Holt; Cory v Bretton (1830) 4 C&P 462
and Re River Steamer Co, Mitchell’s Claim (1871) 6 Ch App 822 at
831). This privilege is unique. It covers not only the particular letter
in question but also extends to all the subsequent parts of the
same correspondence on both sides even though they are not
expressed to be ‘without prejudice’ (Paddock v Forrester; Re Harris,
ex parte Harris (1875) 44 LJ Bey 33; Peacock v Harper (1877) 26 WR
109; Oliver v Nautilus Steam Shipping Co [1903] 2 KB 639, CA;
and India Rubber, Gutta Percha, and Telegraph Works Co Ltd v
Chapman (1926) 20 BWCC 184, CA). But, if there is a clear break in the
chain of correspondence to categorically show that the ensuing letters
are open (as per Lord Hanworth MR in India Rubber, Gutta Percha, and
Telegraph Works Co Ltd v Chapman) then the ‘without prejudice’ rule
will not apply. It has been held that the privilege would also cover an
open letter followed by another letter from the same party to say to the
effect that their communications were intended to be ‘ without prejudice’ .
Indeed in Peacock v Harper, Hall VC was reported to have said that the
second letter must be taken as a mere postscript to the former. It is a
correct assertion of the law to say that the privilege attaches not only for
the purposes of the action in which it was written (Stretton v Stubbs
(1905) Times, dated 28th February) but it also extends, far and wide, to
cover and protect the solicitor who writes the letter in question as well as
for the client in question (La Roche v Armstrong [1922] 1 KB 485).”
(penekanan diberikan)
Md Khusaini @ Md Adam bin Hj Tamrin dan lain-lain lwn Brahim’s Sats
Food Services Sdn Bhd [2022] MLJU 3476

[13] Pihak Defendan menghujahkan bahawa dengan kehadiran

peguamcara Plaintif-Plaintif semasa perjumpaan pada 2.12.2020 akan
dengan serta- merta membuat rundingan tersebut satu
rundingan tanpa prejudis berdasarkan kes HADI BIN HASSAN v
SURIA RECORDS SDN BHD & ORS [2005] 3 MLJ 522 yang
menyatakan seperti berikut:-
“48 Approaching the present case on the basis of these well-
established principles, the presence of the plaintiff’s counsel at the
third meeting clearly demonstrated that the meeting was held on a
‘without prejudice’ basis.”
[14] Pihak Defendan menghujahkan bahawa
prinsip tanpa prejudis adalah untuk menggalakkan
rundingan/perbincangan antara pihak-pihak supaya satu penyelesaian
dapat dicapai tanpa litigasi. Oleh itu segala rundingan/perbincangan
sesama pihak-pihak samada ditandakan sebagai prejudis atau tidak
akan dilindungi oleh prinsip tanpa prejudis dan tidak boleh
dikemukakan kepada Mahkamah sekiranya rundingan/perbincangan
tersebut gagal.

[15] Di dalam kes DUSUN DESARU SDN BHD & ANOR v. WANG AH
YU & ORS [1999] 2 CLJ 749 Mahkamah Tinggi telah menjelaskan
prinsip tanpa prejudis seperti berikut:-
“The case of Field v. Commissioner for Railways [1957] 99 CLR 285 at
291 lays down the following proposition: As a matter of policy, the law
has long EXCLUDED from evidence admissions by WORDS OR
CONDUCT made by parties in the course of negotiations to settle
litigation. The purpose is to enable parties engaged in an attempt
to compromise litigation to communicate with one another freely
and without the embarrassment which the liability of their
communications to be put in evidence subsequently might impose
upon them. To me, without prejudice communications can be said to be
privileged or for a better nomenclature privileged communications…

Negotiations to settle disputes may be conducted in many ways:

by oral means (face to face), by correspondences, by facsimile
communications, by exchanges of telex messages, by courier
services or the combination of any one of them . In Rush & Tompkins
Ltd v. Greater London Council [1989] 1 AC 1280, the House of Lords
ruled that genuine negotiations with the sole object of settlement are
protected from disclosure whether or not the “without prejudice” label
has been expressly employed in the negotiations. As I said exhs. A15,
A16 and A17 of encl. 4 DO NOT CARRY the “without prejudice”
labels, YET THE SHIELD OF PRIVILEGE would apply to them . Lord
Griffiths in Rush & Tompkins Ltd v. Greater London Council (supra) aptly
put it as follows (see p. 1299 of the report):
The ‘without prejudice’ rule applies to exclude all negotiations
genuinely aimed at settlement whether oral or in writing from being
given in evidence. A competent solicitor will always head any
negotiating correspondence ‘without prejudice’ to make clear beyond
doubt that in the event of the negotiations being unsuccessful they are
not to be referred to at the subsequent trial. However, the application
of the rule is NOT dependent upon the use of the phrase ‘without
prejudice’ and 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 at the trial and cannot be used to establish an
admission or partial admission.

Md Khusaini @ Md Adam bin Hj Tamrin dan lain-lain lwn Brahim’s Sats

Food Services Sdn Bhd [2022] MLJU 3476

[17] Kes HADI BIN HASSAN (supra) juga dirujuk di mana kes ini
menyatakan seperti berikut:-
“7 Now, all letters written and all oral communications made
between the parties during a dispute for the purpose of settling the
dispute (Grace v Baynton (1877) 21 Sol Jo 631 Kitcat v Sharp (1882)
48 LT 64; Re Daintrey, ex parte Holt (1893) 2 QB 116 and E Hulton &
Co Ltd v Chadwick, Taylor & Co (1919) 122 LT 66, HL) which are
expressed or proved to have been made ‘ without prejudice’ cannot, in
law, be admitted in evidence (Waldridge v Kennison (1794) 1 Esp
143; Paddock v Forrester (1842) 3 Scott NR 715; Whiffen v
Hartwright (1848) 11 Beav 111; Hoghton v Hoghton (1852) 15 Beav
278; Re Daintrey, ex parte Holt; Cory v Bretton (1830) 4 C&P 462
and Re River Steamer Co, Mitchell’s Claim (1871) 6 Ch App 822 at
831). This privilege is unique. It covers not only the particular letter
in question but also extends to all the subsequent parts of the
same correspondence on both sides even though they are not
expressed to be ‘ without prejudice’ (Paddock v Forrester; Re Harris,
ex parte Harris (1875) 44 LJ Bey 33; Peacock v Harper (1877) 26 WR
109; Oliver v Nautilus Steam Shipping Co [1903] 2 KB 639, CA;
and India Rubber, Gutta Percha, and Telegraph Works Co Ltd v
Chapman (1926) 20 BWCC 184, CA). But, if there is a clear break in the
chain of correspondence to categorically show that the ensuing letters
are open (as per Lord Hanworth MR in India Rubber, Gutta Percha, and
Telegraph Works Co Ltd v Chapman) then the ‘ without prejudice’ rule
will not apply. It has been held that the privilege would also cover an
open letter followed by another letter from the same party to say to the
effect that their communications were intended to be ‘ without prejudice’.
Indeed in Peacock v Harper, Hall VC was reported to have said that the
second letter must be taken as a mere postscript to the former. It is a
correct assertion of the law to say that the privilege attaches not only for
the purposes of the action in which it was written (Stretton v Stubbs
(1905) Times, dated 28th February) but it also extends, far and wide, to
cover and protect the solicitor who writes the letter in question as well as
for the client in question (La Roche v Armstrong [1922] 1 KB 485).”
(penekanan diberikan)

Md Khusaini @ Md Adam bin Hj Tamrin dan lain-lain lwn Brahim’s Sats

Food Services Sdn Bhd [2022] MLJU 3476

20.4 Dalam kes Mahkamah Persekutuan Malayan Banking Bhd v. Foo

See Moi [1981] 1 MLRA 641 melalui Chang Min Tat FJ yang
menyatakan:

“It is settled law that letters written without prejudice are inadmissible in
evidence of the negotiations attempted. This is in order not to fetter but
to enlarge the scope of the negotiations, so that a solution acceptable to
both sides can be more easily reached..”

Manakala dalam kes Wong Nget Thau & Anor v. Tay Choo Foo [1994] 2
MLRH 752:
“The fact that a document is headed “without prejudice” does not
conclusively or automatically render it privileged ... The court must, in
deciding whether a letter marked “without prejudice” is
admissible, consider whether the letter was part of a genuine
attempt to settle a dispute ... There was no dispute existing at the
time of his said letter. Since there was no dispute. the letter of the
said advocate was not written in an attempt to settle a dispute or in
the course of negotiation. The letter of the said advocate is therefore
admissible.”
Md Khusaini @ Md Adam bin Hj Tamrin dan lain-lain lwn Brahim’s Sats
Food Services Sdn Bhd [2022] MLJU 3476

However merely marking a document “without prejudice”

does not necessarily mean that the document will be excluded from
admission as evidence as to its contents. There must be a dispute at the
time the letter was issued and a genuine attempt to resolve it. In Wong
Nget Thau v Tay Choo Foo [1994] 3 MLJ 723, Ian Chin J explained it as
follows:

“The fact that a document is headed “without prejudice”

does not conclusively or automatically render it privileged… The court
must, in deciding whether a letter marked “without prejudice” is
admissible, consider whether the letter was part of a genuine attempt to
settle a dispute…There was no dispute existing at the time of his
said letter. Since there was no dispute, the letter of the said advocate
was not written in an attempt to settle a dispute or in the course of
negotiation. The letter of the said advocate is therefore admissible.”
In Dusun Desaru Sdn Bhd v Wang Ah Yu [1999] 5 MLJ 449, it was
clarified that:

“Two common features must be present before this privileged

communications could be activated:

(a) some individuals must be in dispute and that dispute led them to
negotiate with one another; and

(b) the communication between the parties must contain suggested

terms that would finally lead to the settlement of the dispute”

Conversely a without prejudice communication even if not expressly

stated to be such, would be precluded from being disclosed at a trial for
so long as there were negotiations towards a settlement. Sinojaya Sdn
Bhd v. Metal Component Engineering Pte Ltd [2003] 1 SLR 281 was a
Singapore case which concerned without prejudice communications in
the form of the minutes of a meeting to discuss settlement of the
plaintiff’s claim. There was no reference to the communications being on
a without prejudice basis. The defendant took the position that the
meeting was on a without prejudice basis and applied to strike out
certain paragraphs in those affidavits which referred to the meeting and
which exhibited the minutes.

RHB Trustees Berhad v Oilfab Sdn Bhd & Anor [2015] MLJU 2085

So, apapun, tiada merit bagi argument Defendan Pertama.

[42] This court would respectfully agree with the views expressed by
Ormrod J in the case of Tomlin v Standard Telephones and Cables
Ltd [1969] 3 All ER 201 :
From these cases it seems to me that the principle which emerges is
that the court will protect, and ought to protect so far as it can, in the
public interest, 'without prejudice' negotiations because they are very
helpful to the disposal of claims without the necessity for litigating in
court and, therefore, nothing should be done to make more difficult or
more hazardous negotiations under the umbrella of 'without prejudice'. I
am well aware, coming from the division which I do, that letters get
headed 'without prejudice' in the most absurd circumstances, but these
letters, in my judgment, are not letters headed 'without prejudice'
unnecessarily or meaninglessly. They are plainly 'without prejudice'
letters and, therefore, the court, in my judgment, should be very slow to
lift the umbrella of 'without prejudice' unless the case is absolutely plain.

Indran a/l N Jeganathan v Nithiyani a/p K Kulaveerasingam [2011] 7

MLJ 237

[47] It is imperative that the surrounding facts and circumstances be

taken into account in order to determine whether the parties were
actually and sincerely seeking a compromise to the dispute. Where a
compromise or settlement is being sort to the dispute the “without
prejudice” rule would then apply to the communication between the
parties. [ANIMATION THEME PARK SDN BHD V ZJ ADVISORY SDN
BHD [2017] MLJU 1683]

Plaintif menafikan dakwaan Defendan tersebut dan menghujahkan

seperti berikut:-

Plaintif menghujahkan bahawa surat bertarikh 01.06.2020 (m/s 1 IDB

(BAHAGIAN C & e-mel m/s 1 – 2 IDB (Bahagian C – Jilid 2) tersebut
tidak ditandakan dengan Tanpa Prejudis walaupun adalah bertujuan
untuk pihak-pihak berunding bagi maksud penyelesaian berbangkit
daripada perlanggaran kontrak.

Berdasarkan prinsip yang dinyatakan di atas, Plaintif menghujahkan

bahawa Surat yang ditulis tanpa prejudis ini boleh diterima Mahkamah.
Tugas dan obligasi Defendan khususnya berkenaan pembayaran
pampasan adalah termaktub di bawah kontrak-kontrak tersebut yang
mana ianya tidak pernah dipertikaikan oleh Defendan pada setiap masa
yang material.

[30] In Re Jinro (HK) Ltd [2002] 4 HKC 90 the judge held that it was not
necessary for a 'without prejudice' stamp to be expressly applied to the
negotiations if it was clear from the surrounding circumstances that the
parties were genuinely seeking to compromise the dispute. It was stated
in that case that a party claiming without prejudice privilege on
communication would have to show that the communication was made
(i) at a time when there was an existing dispute between the parties: (ii)
legal proceedings in relation to the dispute had commenced or were
contemplated: (iii) the communication was made in a genuine attempt to
settle the dispute; the communication was made with the intent that if
negotiations failed, it could not be disclosed without the parties consent.