The 'Without Prejudice' privilege does not apply unless there are genuine settlement negotiations present; mere requests for extensions do not qualify as negotiations.

[1] On 10 June 2025 this Court dismissed encl 13 which is the Defendant's application under O 41 r 5-6 Rules of Court 2012 (RoC) to expunge some contents averred to in the Plaintiff's Affidavit-In-Support for the Plaintiff's application for a Summary Judgment, and a stay pending this Court's determination of the same. Costs of RM3,000.00 was granted to the Plaintiff. The hearing of the Summary Judgment application was fixed for 20 June 2025.

[2] On 20 June 2025 this Court ruled in favour of the Defendant when it dismissed the Plaintiff's application for the Summary Judgment under O 14 RoC. This Court directed that the claim be adjudicated via a full trial.

[3] The Defendant has wished to proceed to appeal against this Court's decision in dismissing its application to expunge the following:

(i) Exhibit PN3;

(ii) Exhibit PN5;

(iii) Paragraphs 10, 11, 12, 14, 15, 16 of the Plaintiff's Affidavit-In¬Support in encl 10.

[4] Exhibit PN3 is a letter from the Defendant signed by its director dated 25 November 2024 that had requested for an extension of time to address the matters raised in the Plaintiff's letter dated 11 November 2024. It had proposed to an additional period up to the end of 2024 to engage in discussions. It was marked 'Without Prejudice'.

[5] It was in response to the Plaintiff's demand to repay and settle RM15,000,000.00 within 30 days for the loan granted by the Plaintiff to the Defendant.

[6] Exhibit PN5 the Defendant's solicitor's reply to the Plaintiff's solicitor's notice of demand for RM32,197,347.93 to be repaid within 14 days. Exhibit PN5 requested to hold the matter in abeyance until 30 June 2024. It was also marked 'Without Prejudice".

[7] Paragraphs 10, 11, 12, 14, 15 and 16 of the Plaintiff's Affidavit-in¬Support are statements on the facts that led to the issuance of the correspondences Exhibit PN3 and Exhibit PN5.

[8] The basis for the Defendant's application to expunge PN3, PN5 and the relevant paragraphs was on the notion that the two letters were marked 11 Without Prejudice" and thus ought not to be included in the application for a Summary Judgment against it.

This Court's Findings

[9] Despite Exhibits PN3 and PN5 marked with "WithoutPrejudice", the Defendant did not at any time dispute that a debt was owed by it to the Plaintiff. The Defendant had not disputed the repayment terms of the debt but merely had sought an indulgence of time.

[10] Exhibits PN3 and PN5 did not reflect any negotiations or discussions for settlement. Therefore, this Court viewed that the mere marking of "Without Prejudice" did not amount to the two letters privileged to disclosure for the purpose of the Plaintiff's application for Summary Judgment (which was dismissed in any event and this Court had set the case for trial).

[11] It was not an occasion where terms of settlement were proposed with parties' posturing and positioning were illustrated that may prejudiced either party. This Court had considered the following authorities when it decided to dismiss the Defendant's application to expunge Exhibits PN3, PN5 and the relevant paragraphs in the Plaintiff's Affidavit-In-Support:

(i) Malayan Banking Bhd v. Foo See Moi [1981] 1 MLRA 641; 1981 MarsdenLR 192 ;

(ii) RHB Trustees Berhad v. Oilfab Sdn Bhd & Anor 2015 MarsdenLR 1682; .

[12] This Court opined that the prerequisites for Exhibit PN3 and PN5 to attract the shield of "Without Prejudice" were not met. The letters are absent of any suggestions of terms that would finally settle the debt claimed. SeeEast Coast Economic Region Development Council v. Inai Kiara Sdn Bhd & Anor and other appeals 2019 MarsdenLR 689 , Dusun Desaru Sdn Bhd & Anor v. Wang Ah Yu &