The without prejudice principle is an article of faith in the conduct of mediations and settlement negotiations. In most common law countries, what this means is that negotiations by parties and communications sent to each other labeled ‘without prejudice’ are privileged and inadmissible as evidence.
The purpose of the rule is to encourage disputing parties to try and reach a settlement by allowing their legal advisers to speak freely and make concessions, with the confidence that their words will not, if the negotiations fail, later be considered by a judge or arbitrator when he or she decides factual issues. However, important as this rule may be, there are exceptions. The Mediation feature examines two cases in which one such exception – unambiguous impropriety – was found to apply and explains important lessons that those involved in settlement negotiations should take away from them.
Elsewhere in our October issue is a Data Privacy article that provides an overview of the potential and legal liability issues for Internet of Things businesses in Hong Kong and then offers recommendations on how to minimise those risks. The Criminal Law piece reminds us that while the revised sentencing practice may offer more incentive to a defendant to plead guilty at the first reasonable opportunity in criminal proceedings, ethical considerations remind us that he or she has always had complete freedom to choose how to plead, and can do so for reasons of his or her own. Additionally, the Practice Management article discusses the growing complexity of outside counsel guidelines (“OCGs”) and the need for law firms to better monitor their terms.
Also of interest is the Leisure section, which features an exclusive interview with On-Yee Ng, Hong Kong’s snooker ace. In a Q&A, she talks about her career and explains how she keeps her focus regardless of whether she is on a winning streak or facing a set-back.