Abdul Malik Ishak J:

[1] This is an application by the respondent (encl 8) to strike out the affidavit of Oh Kuang Liang ("Oh"), the applicant in this originating motion, that was affirmed on 17 May 1995 (encl 6). The application of the respondent is supported by the affidavit of Tan Tu Kiah ("Tan"), the director of the respondent's company, affirmed on 25 May 1995 (encl 7). Tan deposed in his affidavit that the "without prejudice" letters between solicitors are inadmissible as they were said to be privileged. Tan took particular objections to two letters (dated 28 January 1994 and 6 April 1994) which he singled out and which clearly bore the "without prejudice" labels on them; he too took exceptions to the other three letters which equally bore the "without prejudice" tags on them. There was only one letter dated 26 February 1994 which did not carry the "without prejudice" label.

[2]Halsbury's Laws of England, fourth edition at para 212, contains a brief summary of the law on communications "without prejudice". There, it is stated that:

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Letters written and oral communications made during a dispute between the parties, which are written or made for the purpose of settling the dispute, and which are expressed or otherwise proved to have been made "without prejudice", cannot generally be admitted in evidence. The ru1e does not apply to communications which have a purpose other than settlement of the dispute; thus, it does not apply in respect of a document which, from its character, may prejudice the person to whom it is addressed.

The privilege, where it exists, covers not only the particular letter itself but also all subsequent parts of the same correspondence on both sides, even if they are not expressed to be "without prejudice", unless there is a clear break in the chain of correspondence to show that the ensuing letters are open. Moreover, it has been held to cover an open letter, followed by another from the same party to the effect that their communications were intended to be "without prejudice".

The contents of a communication made "without prejudice" are admissible when there has been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement has been reached, and the fact that such communications have been made (though not their contents) is admissible to show that negotiations have taken place, but they are not otherwise admissible. Thus they cannot be used as admissions, or as acknowledgments to prevent a debt from becoming statute-barred, or, normally, for the purpose of deciding the question of costs, or to show malice, although it has been held that they may be admitted to prove matters not connected with the merits of the dispute.

The consent of both parties to the dispute is required for the privilege to be waived, even if there has been only one communication.

The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.

[5]Osmaston v. Association of Land Financiers [1878] WN 101; Rossage v. Rossage [1960] 1 WLR 249, lay down an inflexible rule that an affidavit must be pertinent and material and may be ordered to be taken off the file if scandalous and irrelevant matter is inserted. Even, at times, scandalous matter may be expunged (Warner v. Mosses [1881] WN 69). But it is not necessary for the Court to strike out the whole affidavit; sufficient it the Court strikes out only those parts which are scandalous, irrelevant or otherwise oppressive.

[6] From a perusal of Oh's affidavit in encl 6, only para 7 is said to be objectionable and that paragraph is worded thus:

Malahan sehingga affidavit responden diserahkan kepada peguam saya pada 5 April 1995 saya langsung tidak tahu akan tarikh perjanjian jual beli di antara responden d