“That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. The general principle was stated by Oliver LJ as follows: That case was concerned with the English concept of written without prejudice save as to costs, but certain observations were made as to the general nature of without prejudice letters.

The English case of Cutts v Head Ch 290 2 WLR 349 1 All ER 597 was referred to. In that case it was argued that because a letter was written without prejudice, the contents could not be looked at and could not be held to constitute an admission. The Scottish position was discussed in the case of Daks Simpson Group plc v Kuiper 1994 SLT 689. This article considers whether that is good, or bad. Originally a reasonably straightforward reservation of a party’s legal position, the author has been on the receiving end of a number of attempts to import English jurisprudence into the law of Scotland. Probably one of the most overused and misunderstood “tags” in legal correspondence.

Calderbank letter template