Ian Murphy v Zambia Tourism Agency and Anor (2016/HPC/0441) [2019] ZMHC 39 (19 September 2019)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2016/HPC/0441 BETWEEN: IAN MURPHY AND PLAINTIFF ZAMBIA TOURISM AGENCY DEFENDANT NEW HORIZON PRINTING PRESS LIMITED THIRD PARTY Delivered in Chambers before the Honourable Mr. Justice Sunday B. Nkonde, SC at Lusaka this 19th September, 2019. For the Plaintiff : Mr. M. Mwansa of Messrs Mosha & Company For the Defendant : Mr. I. Motelli & Mr. M. Ndalameta of Messrs Musa Dudhia & Company For the Third Party Mr. W. Mwenya of Messrs. Lukona Chambers RULING CASES REFERRED TO: 1) Rush & Tompkins Limited v Greater London Council (1998) 3 ALLER 737 Rl 2) Cutts v Head (1984) 1 ALL ER 597 3) Scott Paper Co v Drayton Paper Works Limited (1927) 44 RPC 4) Unilever PLC v The Procter and Gamble Co. (2001) 1 ALL ER 5) Avonwick Holdings Limited v Webinvest Limited (2014) WLR (DJ 424 6) Lusaka West Development Company Limited v Turnkey Properties Limited (1990-1992) ZR 1. 7) South Shropshire District Council v Amos (1986) 1 WLR 8) In Re Daintray Exparte Holt (1893) Q. B. 116 9) Bradford & Bingley PLC v Rashid (2006) UKHL 37 LEGISLATION AND OTHER WORKS REFERRED TO: 1) Supreme Court Practice Rules, 1999 Edition (White Book). This is a Ruling on an objection raised by the Defendant regarding the use by the Plaintiff of a witness statement by Ruth S. Mwenya. The notice of objection is supported by an affidavit sworn by one Stein Liyanda, the Director of Finance and Board Secretary of the Defendant statutory body. R2 It is deponed that early in 2012, the Plaintiff claimed that the Defendant had infringed its copyright, which claim the Defendant denied. Further, that the Defendant subsequently received communication from the Zambia Reprographics Rights Society (ZARRSO) around May, 2012, purporting to act on the Plaintiff's behalf. The deponent asserted that following receipt of these demands, various representatives of the Defendant, the deponent inclusive, attended several meetings with Ms. Ruth Mwenya and Ms. Kafula Bwalya of ZARRSO. He added that the meetings were held on 24th May, 2013, 9 th October, 2013 and 6 th December, 2013. The deponent stated that it is the discussions that took place in the aforesaid meetings, as well as the resultant correspondences, that the Plaintiff now wishes to use against the Defendant. He added that the Plaintiff has cross referenced statements in the Witness Statement to purported minutes of the aforesaid meetings. In its skeleton arguments, the Defendant argued that the basis of the objection is best captured by the seminal statement of Lord Griffiths in the case of Rush & Tompkins Ltd v Greater London Council1 at 739-740, to the effect that:- R3 "The without prejudice rule is a rule governing the admissibility of evidence and founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. It is nowhere more clearly expressed than in the judgment of Oliver LJ in Cutts v Head2 : "that the rule rests, at least in part, on public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed in Scott Paper Co v Drayton Paper Works Ltd3 at page 156, be encouraged freely and frankly to put their cards on the table... The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability. The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence". R4 Further, the Defendant referred to the case of Unilever PLC v The Procter and Gamble Co. 4 , wherein it was held that:- "its other basis or foundation is in the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence if, despite the negotiations, a contested hearing ensues". The Defendant's argument, therefore, is that the Witness Statement in question brings before Court statements and offers made in the course of negotiations for settlement. The Defendant asserted that at the time of the meetings, there existed a genuine dispute in terms of the principles espoused in the case of Avonwick Holdings Limited v Webinvest Limited5 • It added that the present case is distinguishable from the Avonwick case (supra) because in casu, there is nothing to suggest that this privilege has been raised after the fact so as to apply retrospectively to the meetings detailed in the Affidavit in Support. Further, the Defendant referred to the case of Lusaka West Development Company Limited v Turnkey Properties Limited6 wherein the Supreme Court held that:- " ... as a general rule, therefore, without prejudice communication or correspondence is admissible on grounds of public policy to protect genuine RS negotiations between the parties with a view to reaching a settlement out of court. The Defendant, in relation to the exchange of witness statements, referred to Order 38 Rule 2A (8) of the White Book which states that nothing in the provisions shall make admissible, evidence which is otherwise inadmissible. It is the Defendant's contention that should the court find that the documents in question are inadmissible, the said documents should be expunged from the record. In response to the notice of objection, the Plaintiff filed an affidavit and skeleton arguments. The deponent of the affidavit was Mukoloba Mwansa, counsel for the Plaintiff. He deposed that the documents objected to by the Plaintiff were not marked as "without prejudice". Further, that the Defendant did not object to the production of the documents during discovery. Additionally, the deponent averred that the Defendant did not object to the admission of the documents as part of the Plaintiff's evidence and to his reference to them during trial. R6 In the skeleton arguments, the Plaintiff made reference, inter alia, the Avonwick case [supra] wherein the court held thus: "For a document to be inadmissible on the grounds that it is without prejudice, it must form part of a genuine attempt to resolve it. If there is no dispute about a liability, but only a negotiation as to how and when it should be discharged, the negotiations and the document produced in the course of them are not covered by the without prejudice". The Plaintiff argued that a perusal of the documents in question will reveal that the Plaintiff's claim itself was not in dispute. He added that there were only negotiations relating to how the Plaintiff's claim could be discharged through, inter alia, the amount/value of the compensation to be paid. The Plaintiff further submitted that although a document may be considered without prejudice notwithstanding that it is not marked as such, any such marking is highly material in determining its status. He asserted that a cardinal principle espoused in the case of South Shropshire District Council v Amos 7 is that the express marking of documents as without prejudice is a highly material factor in determining their status but that it is not conclusive. R7 In addition, the Plaintiff stated that where bundles have been agreed upon by the parties, all documents in those bundles are admissible, unless the court orders otherwise. I have read and considered the arguments advanced by both parties in respect of the notice of objection raised by the Defendant. I note that the essence of the objection is the admissibility of documents referred to in the Plaintiff's witness statement, and produced in the Plaintiffs bundle of documents. The Defendant's contention in this regard is that the said documents are inadmissible on the ground that they are "without prejudice". It is settled law that for a document to be inadmissible on the ground that it is "without prejudice", it must form part of a genuine attempt to resolve a dispute. This entails that there needs to be both a genuine dispute to be resolved and a genuine attempt to resolve it. In Re Daintrey Ex Parte Holt (4)8 for instance, the court stated thus:- "In our opinion the rule which excludes documents marked "without prejudice" has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation, and it seems R8 to us that the judge must necessarily be entitled to look at the document in order to determine whether the conditions, under which alone the rule applies, exist. The rule is a rule adopted to enable disputants without prejudice to engage in discussion for the purpose of arriving at terms of peace, and unless there is a dispute or negotiations and an offer the rule has no application." Further, the court in Bradford & Bingley Plc. v Rashid stated that:- "The existence of a dispute and of an attempt to compromise it are at the heart of the rule whereby evidence may be excluded (or disclosure of material precluded) as "without prejudice". . .. the rule does not of course depend upon disputants already being engaged in litigation. But there must as a matter of law be a real dispute capable of settlement in the sense of compromise (rather than in the sense of simple payment or satisfaction)." Therefore, the cardinal issue to be determined in casu is whether at the time of the meeting and correspondences in issue, there existed a genuine dispute between the parties. To resolve this, I will refer to the relevant portions of the Plaintiff's witness statement: R9 "5. That in May 2014, the Plaintiff reported to ZARRSO about an alleged infringement on his photographs by the Defendant. .. 6. That ZARRSO, acting upon the said report, contacted the Defendant with a proposal to resolve the case ... '' (Emphasis is the court's). From the foregoing, it can be deduced that there was a dispute which ZARRSO, on behalf of the Plaintiff, was seeking to resolve with the Defendant. Further perusal of the witness statement reveals that meetings were subsequently held, and correspondences exchanged. I must mention that it is the minutes of the said meetings as well as the resultant correspondences that the Defendant now wishes to have struck out of the Plaintiff's bundle of documents for being "without prejudice". The said documents are found on pages 6 to 97 of the Plaintiff's bundle of documents. Having perused the documents in question, I find that the same are without prejudice owing to the fact that they emanated from a dispute which the parties were trying to resolve. As held in the Bradford case (supra); the existence of a dispute and of an attempt to compromise it, are at the heart of the rule whereby evidence may be excluded as "without prejudice". RlO I must further state that the express marking of documents as "without prejudice", though material, is not the major factor to be considered in determining their status. The main issue of relevance is whether or not at the time of the documents came into being, there was a genuine dispute between the parties. With regards to the argument by the Plaintiff that the Defendant did not object to production of the documents during discovery, I find that the failure by the Defendant to do so does not take away its right to object to the inclusion of the documents in the bundle. The said documents are without prejudice and, thus, allowing them to be included in the bundle would be against the interests of justice. The Defendant's application, therefore, succeeds and I hereby order that the documents from page 6 to 97 be expunged from the Plaintiff's bundle of documents. Costs to the Defendant. Leave to appeal is granted. Dated at Lusaka this 19th day of September, 2019. HON. JUSTICE SUNDAY B. NKONDE, SC / HIGH COURT JUDGE Rll