Sex Pistols judgement clarifies ‘without prejudice’ rule

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A bust-up between the former members of the Sex Pistols punk band has led to a clarification of the ‘without prejudice’ rules. Communications marked ‘without prejudice’ are generally not allowed to be admitted to court proceedings – and are designed to help parties negotiate settlements outside of the courts.

Two former members of the Sex Pistols, Steve Jones and Paul Cook, along with the estate of Sid Vicious (Simon Ritchie), wanted the band’s music to be featured in a new TV series ‘Pistol’ based on Steve Jones’ memoir. Former lead singer, Johnny Rotten (John Lydon), refused permission as he thought the series was ‘disrespectful’.

The other band members wanted to rely on a Band Member Agreement (BMA). This allowed a majority of members of the band to bind the minority if they wanted to licence the band’s music. Lydon argued the BMA was not binding and claimed that the band had always acted on the basis of unanimous agreement.

In the course of the dispute, there was a chain of email communication between the parties’ legal teams marked ‘without prejudice’. The last email in the communication was not marked ‘without prejudice’ and Lydon’s team wanted it – and the lack of response to the final email – to be admitted into the court proceedings.

The judge refused Lydon permission to use the email. He ruled that the last email in the chain clearly followed on from the previous emails, which were exchanged in an attempt to settle the dispute. He said that there had been not been a clear indication that the sender wanted to move to ‘open’ communications.

James Burgoyne, Divisional Director – Claims & Technical, Brunel Professions said: “This case clearly demonstrates the protection provided by the ‘without prejudice’ rules. These are really helpful in allowing parties to negotiate a settlement without the risk that any offers may be used in a future court case. If professional firms are involved in a dispute and want to rely on a document in court following without prejudice discussions, then they must take steps to ensure that it is abundantly clear to all parties that they are moving to an ‘open’ communication.

Reports about the case have been published by Herbert Smith Freehills and The Guardian.

Brunel provides professional indemnity insurance broking services to professional firms. Visit our website to find out more or call Jonathan Filer on +44 (0)117 325 0752.

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