Unilever Plc v Proctor & Gamble Co. [2001]

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Unilever Plc v Proctor & Gamble Co. [2001] 1 All ER 783

A case concerning Without Prejudice letters

Facts

Procter & Gamble was the proprietor of a European Patent which was granted in 1993 with designations for Germany, Italy, Spain and the United Kingdom. The patent was principally for a process (“for the washing of laundry in a machine”) rather than for a product, but from Unilever’s point of view, the essential issue is whether or not the manufacture and sale of a product known as Persil Performance Tablets would constitute an infringement of Procter & Gamble’s patent.

The principal issue raised in the appeal is as to the application of the general rule of evidence on ‘without prejudice’ communications to a form of proceedings peculiar to patent law and an action for threats.

Judgement

Court dismissed the appeal on the basis that, the threat of the kind did no damage to the rival manufacturer. The Court inter alia laid down the exceptions to the “without prejudice” rule. The “without prejudice” rule will not apply in the following situations;

1. Where the issue is whether the ‘without prejudice’ communications had resulted in a concluded compromise settlement.
2. Where it was admissible to show that an agreement apparently concluded between the parties during negotiations should be set aside on the ground of misrepresentation, fraud or undue influence.
3. Where a statement might be admissible as giving rise to an estoppel.
4. Where the exclusion of the evidence would act as a cloak for perjury, blackmail, threat or other unambiguous impropriety.
5. Where the evidence is admissible in order to explain delay or apparent acquiescence, for instance, in applications to strike out proceedings for want of prosecution.
6. Where in an action for negligence, the evidence was admissible to show that the Claimant had acted reasonably to mitigate his loss in his conduct and conclusion of negotiations for the compromise of proceedings brought by him against a third party.
7. Where the evidence was admissible as being an offer made ‘without prejudice save as to costs’.
8. In matrimonial cases, a distinct privilege extending to communications received in confidence with a view to matrimonial conciliation.
9. ‘Without prejudice’ communications which are an election between two mutually inconsistent alternative courses of action.
10. Where the communication is an act of bankruptcy.