IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 70 OF 2005

NO. 163 OF 2006

BETWEEN

PACIFIC GREEN INDUSTRIES (FIJI) LIMITED
Plaintiff

AND

SUN INSURANCE CO. LIMITED
Defendant

Appearances: Mr. Samuel K. Ram & Mr. Dalituicama for the plaintiff
Mr. Vipul Mishra & Ms Mary Muir for the defendant

Hearing: 17 August 2006
Ruling: 17 August 2006

Extempore Ruling

[1] I am asked to rule on the admissibility of three letters:

(i) AON – 31/12/04
(ii) Sun Insurance – 31/12/04
(iii) Insurance Assessors & Investigators (Fiji) Ltd. – 28/12/04

[2] The latter two have clearly written "WITHOUT PREJUDICE" on the top of each letter. The letter of 28 December (the copy I have is almost ineligible) is a report by the defendants investigator to it’s client about inquiries conducted with the Sigatoka National Fire Authority, and is signed by Mr. Matailevu.

[3] Having read the relevant correspondence between the parties, it is my view that the letters marked "Without Prejudice" were clearly written in the course of a continuing sequence of negotiations which did not end until late February or March 2005. As such the letters are privileged and cannot be admitted in evidence without the consent of both parties. The Dixon Stores case referred to me by learned counsel for the plaintiff is distinguishable – in that case the negotiations and correspondence without prejudice had finished and come to nothing. I am also guided by the policy reasons referred to by Mr. Mishra protecting privileged communications. As I have already informed counsel, I would be very reluctant to admit without prejudice communications, whether oral or written which were part of a continuing sequence of negotiations. For these reasons, I hold that the Sun Insurance letter of 31 December 2004 and that signed by Mr. Matailevu are privileged and cannot be admitted into evidence without the defendant’s consent.

Gwen Phillips
JUDGE

At Lautoka
21 August 2006