GTS Ltd v Bugotu Nickel Ltd [1994] SBHC 20; HC-CC 367 of 1993 (8 August 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 367 of 1993

G.T.S. LIMITED
(Trading as Guadalcanal Travel Service)

-V-

BUGOTU NICKEL LIMITED

High Court of Solomon Islands
(Muria, CJ.)

Hearing: 8 August 1994
Judgement: 8 August 1994

A. Radclyffe for the Plaintiff
T. Kama for the Defendant

MURIA, CJ: This matter came before the Court and the Plaintiff now seeks judgement on the basis that the Defendant had already agreed to pay and did pay two instalments of $10,000.00 each. The balance of $57,565.33 is still outstanding together with interest on the reducing balance at 15% and court fees of $2,500.00 and costs.

Mr. Kama who appeared for the Defendant sought adjournment of the matter and asked that the matter proceed to trial.

Mr. Kama clearly is not on the record as solicitor for the Defendant. No Notice of Change of Solicitor has been filed with the Court. Mr. Kama asked that he appeared in his capacity as a Director of the Defendant's Company. The Court allowed Mr. Kama to appear as Director o the Defendant's Company.

Mr. Kama argued that the Defendant had been prejudiced by the Plaintiff not complying with the rules. He says, the Summons for directions had been issued but the Plaintiff did not show that the Defendant failed to comply with it.

The complaint relating to the Summons for Direction, I am afraid cannot be accepted. The Order for Directions was made on 3 December 1993 by consent between solicitors for the parties and no cause of complaint can now be raised by the Defendant.

The other argument relied on by Mr. Kama is the "Without Prejudice" evidence that two instalments had actually been paid by the Defendant to the Plaintiff as part settlement of the Plaintiff's claim. Mr. Kama said that, the letter cannot be accepted in evidence against the Defendant, since it is a "Without Prejudice" document.

It has been said that offers of compromise whether expressly or impliedly made on "without prejudice" basis cannot be given in evidence against the partly as admissions. The rationale of this rule is to protect negotiations entered into bona fide between the parties for the settlement of the disputes. See Rabin -v- Mendoza [1954] 1 WLR 271.

The test is whether the communication was part of a genuine attempt to settle a dispute as had been said in South Shropshire D.C -v- Amos [1 All ER 340. However letters and communications are only protected when there was a dispute or negotiations pending between the parties and the letters were bona fide written with a view to reaching a compromise.

In this case the Defendant made an offer of settlement although the court has not shown the terms of that offer. However on 18 May 1994 the Plaintiff through its solicitor sent a "Without Prejudice" letter of acceptance of the offer of settlement. That offer of settlement was accepted at "SBD10,000.00 within 7 days; SBD10,000.00 within 30 days thereafter; and SBD57,565.33 within 30 days thereafter."

On the same day one Stratis Kirmos replied confirming his acceptance of the settlement terms as set out in the Plaintiff's solicitor's "without Prejudice" letter of the same date.

One sees that at that point, negotiations between the parties had been completed and the terms of the compromised reached. The terms of the "without prejudice" offer of acceptance was made by the Plaintiff and not the Defendant. The Defendant had openly confirmed acceptance of the terms of settlement as put by the Plaintiff. Privilege (if any) from that "without prejudice" document can only be claimed by the party making it. Here, it was the Plaintiff. I do not see why the Defendant can claim any privilege from that.

If the Defendant has any privilege, (which in my view, it has not) then the Court would still accept that letter as evidence of an offer of settlement as independent of any admissions of liability on the part of the Defendant.

In those circumstances the Court accepts the offer and acceptance of the settlement as being concluded between the parties and refuses any adjournment of this matter. I make the order that the plaintiff is entitled to be paid the balance outstanding on its claim.

(G.J.B. Muria)
CHIEF JUSTICE