Case: Rush &amp; Tompkins Ltd v Greater London County Council [1989] 1 AC 1280
Outcome: considered
In FFE Building Services (2003) ATPR 41-967 at [50], Wilcox J referred to the decision in the House of Lords in Rush &amp; Tompkins Ltd v Greater London County Council [1989] 1 AC 1280, where the House of Lords considered the principles relating to the privilege attaching to documents which came into existence for the purpose of negotiating settlement. Lord Griffiths, with whom the other members agreed, said at 1301: It seems to me that if those admissions made to achieve settlement of a piece of minor litigation could be held against [a litigant] in a subsequent major litigation it would actively discourage settlement of the minor litigation and run counter to the whole underlying purpose of the "without prejudice" rule. I would therefore hold that as a general rule the "without prejudice" rule renders inadmissible in any subsequent litigation connected with the same subject matter proof of any admissions made in a genuine attempt to reach a settlement. It of course goes without saying that admissions made to reach settlement with a different party within the same litigation are also inadmissible whether or not settlement was achieved with that party. (Emphasis added.) In the present case it is not disputed that the relevant correspondence was in the cause of a genuine attempt to reach settlement. At 1305, his Lordship continued: If the party who obtains discovery of the "without prejudice" correspondence can make use of it at the trial ... [i]t may give some insight into his opponent's general approach to the issues in the case but in most cases this is likely to be of marginal significance and will probably be revealed to him in direct negotiations in any event. In my view this advantage does not outweigh the damage that would be done to the conduct of settlement negotiations if solicitors thought that what was said and written between them would become common currency available to all other parties to the litigation. In my view the general public policy that applies to protect genuine negotiations from being admissible in evidence should also be extended to protect those negotiations from being discoverable to third parties. 18 In any event, I consider that in this case there are cogent underlying reasons of principle, similar to those set out in Rush &amp; Tompkins Ltd [1989] 1 AC 1280, to weigh the balance in favour of non-disclosure. This approach protects the important interests in encouraging negotiated settlements of disputes, ensuring that parties in such negotiations are frank and open with each other, and ensuring that parties communicate without apprehension that confidential (and potentially prejudicial) material may later be made public at the behest of a third party. 19 Accordingly, because inspection of the documents in question leads me to conclude that nothing contained therein "tends to establish" Google's case, and having regard to the above authorities, the application by Google is refused with costs. 20 I now turn to the next issue, namely, whether the ACCC should be given leave to file and serve a Second Further Amended Statement of Claim and a Second Further Amended Application.