Can a Defendant refer to the without prejudice letter?
Alberta, Canada
The following excerpt is from Yellowbird v. Samson Cree Nation No. 444, 2006 ABQB 913 (CanLII):
Counsel for the Plaintiffs objects to the Defendant referring to the Calderbank letter because it is marked “without prejudice”. Communications sent to promote settlement are privileged, whether they are marked “without prejudice” or not. The privilege however does not apply to certain accepted uses of the communication. One is to prove the contents of an agreement of accord and satisfaction, when the communications result in a binding settlement contract. Another exception is when the communication is used to determine an award of costs, at least when the letter specifically states that it will be used for that purpose: Leonardis v. Leonardis, 2003 ABQB 577, 50 Alta. L.R. (4th) 56, 36 C.P.C. (5th) 82, 43 R.F.L. (5th) 144, at para. 3.
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