Examination Timing: 00H00M48S
Emily, a claimant, commences proceedings against a defendant, John, for breach of contract. Shortly after the proceedings were issued, Emily's solicitor wrote to John stating that it was clearly not in any of the parties' interests for the matter to proceed to court. The letter acknowledged that both parties could have conducted themselves more appropriately and expressed a desire to negotiate. The letter included an offer to settle but was not marked 'without prejudice'. John did not accept the offer to settle and refused to negotiate further, leading to continued litigation. Which of the following best describes whether Emily is entitled to withhold inspection from John?
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Your selected option: B
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Without prejudice privilege can apply even when a document is not explicitly marked 'without prejudice' if it is clearly a genuine attempt to settle the matter. The absence of the label does not necessarily exclude the letter from privilege. Option B is incorrect as the privilege can still apply without the label. Option A is incorrect because inspection concerns the right of the other party to use the document in proceedings, not whether they have seen it. Option C is incorrect because not all settlement offers are inherently privileged without the proper context. Option E is incorrect because legal advice privilege only covers communications between a client and their solicitor, not negotiations with the other party.
Key Point: Without prejudice privilege can protect settlement negotiations from disclosure, even if the document is not explicitly marked 'without prejudice', provided it is a genuine attempt to settle.
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