Ramyaa Veerabathran talks about the Oceanbulk shipping and establishes a very amusing comparison between the English and Indian positions of law.
The scope of the “without prejudice” rule has expanded prodigiously over the years, but so have the exceptions, permitted to the enforcement of the rule. Oceanbulk Shipping & Trading v. TMT Asia Ltd. &Ors introduces an unprecedented and seemingly drastic exception which shall facilitate the admission of “without prejudice” communications to aid the interpretation of contractual terms that they gave rise to. This paper critically analyzes the Oceanbulk ruling in the context of the evolutionary trend of the rule and submits that when the “without prejudice” rule is stripped down to the essentiality of its original purpose, the reasoning and effect of the judgment are not inconsistent with the objective of the rule. The latter part of this paper is a comparative exercise which asks the question – how would Occeanbulk be decided under Indian law? It is suggested that Section 23 of the Indian Evidence Act 1872, which is the embodiment of this rule in India, is framed in a manner that permits no exceptions and therefore, the case would be decided contrary to the United Kingdom Supreme Court’s decision. Thus, the Indian “without prejudice” principle remains frozen in its original form, cast in 1872 form whereas in England the rule has evolved greatly.