Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 26 of 2018

Jean-Francois Plante v. B.P. Development Ltd. and Jean-Charles Benoit (CL 26 of 2018) [2019] TCASC 5 (25 January 2019);

Law report citations
Media neutral citation
[2019] TCASC 5
Ramsay-Hale, CJ


Action No CL 26/2018












BEFORE the Chief Justice, the Hon. Mme. Justice Margaret Ramsay-Hale

Ms. Karen Savory instructed by Savory & Co. for the Plaintiff

No appearance for the Defendant

Mr Anthony Gruchot for the Intervenor

Heard on 12 December 2018


1. The Defendant Company, B.P. Development Ltd., is the owner of land in Long Bay ("the Land") which the Plaintiff, Mr. Plante and Mr. Benoit, the Intervenor, agreed to develop into a house, guest house, pool and pool house, They are each 50% shareholders and the only directors of the Company which was incorporated for the purpose of the development and hold their shares under and in accordance with a Shareholder's Agreement executed on 5 August 2014. They are also brothers-in-law.

2. According to Mr Plante, when they acquired the property, they agreed that Mr. Plante would oversee the day to day development of the project and the Company would reimburse him for time spent and expenses incurred in that regard. Mr. Plante alleges that he started work on the project and invoiced the company but the invoice was not paid. As a consequence, he stopped work on the project in March 2016 and commenced proceedings for breach of contract claiming the sum of $74,574.43 as well as interest and costs against the Company. Judgment in default of appearance was entered on his behalf on 30 July 2018.

3. Mr. Plante seeks to enforce the judgment by way of a charging order over the Land. A charging order nisi was granted on 19 October 2018. On the Return Day, Mr. Benoit, appearing by Mr. Gruchot, objected to the Charging Order being made absolute. The matter was adjourned to

 permit Mr. Benoit to put in evidence to establish his standing and to show cause why the Order should not be made absolute.

4. In these proceedings, Ms Savory raises two preliminary objections to Mr. Benoit's affidavit made in opposition to the Order being made absolute: the first is that his evidence was filed out of time, in breach of the Court's directions and that he should not, therefore, be permitted to rely on it to show cause. The second objection, which I take to be in the alternative, is that Mr. Benoit has exhibited "without prejudice" correspondence to his affidavit which correspondence is inadmissible on the grounds of public policy and should be removed.

5. With respect to the first objection, Ms Savory conceded in the course of the hearing that, despite late receipt, Mr. Plante had been able to respond comprehensively to Mr. Benoit's evidence in time for the hearing. In addition, she acknowledged that Mr. Gruchot had, in correspondence, advised her of the difficulties he was experiencing in filing the evidence within the time limited by the Court. The Court indicated then that, in the circumstances where the delay was not contumelious and the Plaintiff had not been prejudiced thereby but had managed to respond in time for the hearing, there were no grounds to strike out Mr. Benoit's evidence and with it his application to discharge the Order nisi.

6. With respect to the second objection taken to Mr. Benoit's evidence, that it contains 'without prejudice' correspondence which is inadmissible, Ms. Savory relies on the case of Unilever Plc v The Procter & Gamble Co [20001 1 WLR 2436. In that case, the Court of Appeal held that the judge below was right to conclude it would be an abuse of process for Unilever to be allowed to plead anything that was said at a meeting which had been arranged between the parties to discuss matters freely with a view to settling a number of issues between them, that is to say, on a without prejudice basis.

7. In the course of judgment, Robert Walker Li, with whom the other members of the Court of Appeal agreed, considered the scope of the rule at p 2442,

" In the course of counsel's clear and well-researched written and oral submissions a general issue arose as to whether the 'without prejudice' rule should be seen as a rule of very wide scope which does however on occasion have to yield to some more powerful principle with which it comes in conflict (such as the need to prevent a litigant deceiving the court with perjured evidence); or whether that wide view represents a failure of proper analysis of the true foundation and purpose of the rule. The most forthright passages in support of the wide view are to be found in Walker v Wilsher (1889) 23 QBD 335, in passages from the judgments of Lord Esher MR, Lindley U and Bowen U conveniently set out in the judgment of Oliver U in Cutts v Head [1984] Ch 290, 302-4. The clearest statement of the need for analysis is in the judgment of Hoffmann L1 in Muller v Linsley (1996) P.N.L.R 74,77, where he said:

"Some of the decisions on the without prejudice rule show a fairly mechanistic approach, but the recent cases, most notably the decisions of this court in Cutts v Head [1984] Ch 290, [198411 All ER 597 and the House of Lords in Rush & Tompkins Ltd v Greater London Council (1989) AC 1280, [198813 All ER 737 are firmly based upon an analysis of the rule's underlying rationale.

Cutts v Head shows that the rule has two justifications. First, the public policy of encouraging parties to negotiate and settle their disputes out of court and, secondly, an implied agreement arising out of what is commonly understood to be the consequences of offering or agreeing to negotiate without prejudice. In some cases, both of these justifications are present; in others, only one or the other...."

8. His Lordship also went on to review the exceptions to the rule, again citing the decision of Hoffman U in Muller's case at pp 79-80:

"If one analyses the relationship between the without prejudice rule and the other rules of evidence, it seems to me that the privilege operates as an exception to the general rule on admissions... that the statement or conduct of a party is always admissible against him to prove any fact which is thereby expressly or impliedly asserted or admitted. Many of the alleged exceptions to the rule will be found on analysis to be cases in which the relevance of the communication lies not in the truth of any fact which it asserts or admits, but simply in the fact that it was made. Thus, when the issue is whether without prejudice letters have resulted in an agreed settlement, the correspondence is admissible because the relevance of the letters has nothing to do with the truth of any facts which the writers may have expressly or impliedly admitted. They are relevant because they contain the offer and acceptance forming a contract which has replaced the cause of action previously in dispute. Likewise, a without prejudice letter containing a threat is admissible to prove that the threat was made. A without prejudice letter containing a statement which amounted to an act of bankruptcy is admissible to prove that the statement was made; see Re Daintrey (1893] 2 QB 116. Without prejudice correspondence is always admissible to explain delay in commencing or prosecuting litigation. Here again, the relevance lies in the fact that the communications took place and not the truth of their contents. Indeed, i think that the only case in which the rule has been held to preclude the use of without prejudice communications, otherwise than as admissions, is in the rule that an offer may not be used on the question of costs; a rule which, as I have said, has been held to rest purely upon convention and not upon public policy.This is not the case in which to attempt a definitive statement of the scope of the purely convention-based rule, not least because, as Fox LI pointed out in Cutts v Head at p 316, it depends upon customary usage which is not immutable. But the public policy rationale is, in my judgment, directed solely to admissions. In a case such as this, in which the defendants were not parties to the negotiations, there can be no other basis for the privilege." [My emphasis]

9.              Mr. Gruchot submits that the correspondence on which Mr. Benoit seeks to rely falls within the exceptions to the rule as it was not exchanged by the parties to these proceedings, was not written either in respect of the underlying claim or of the application for the charging order or written in an effort to compromise the matter before the Court. The correspondence, he says, has been included to provide the Court with relevant background to the current dispute and is not between the parties to this litigation and is plainly admissible as it falls within the exceptions to the "without prejudice" rule.

10. In response to an assertion to the contrary by Ms. Savory, Mr. Gruchot submits further that the fact that the correspondence is marked "without prejudice" is not determinative of the question of whether it is inadmissible. He prays in aid on Note 24/5/45 of the White Book where the learned Editors set out the purpose of the rule with respect to "without prejudice" correspondence - to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement - and note that even if a document is marked "without prejudice" it will not be automatically excluded: "The Court has to examine the document in question and determine its nature" : South Shropshire District Council v Amos [1986] 1 WLR 1271.

11. Having reviewed the authorities, it seems plain to me that, as the correspondence on which Mr. Benoit seeks to rely is not between the parties to this litigation i.e. Mr. Plante and the Company, and is being relied on by Mr. Benoit to provide the Court with background to the matter, the correspondence is admissible and I so hold.

12. Counsel are invited to liaise with the Registrar for a mutually convenient date for the hearing of the substantive application by Mr. Benoit to discharge the Order nisi.

13. The court will hear the parties on costs.