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To obtain an asset freezing order, a claimant must adduce sufficient evidence to convince a court that without restraint the defendant will attempt to make itself judgment-proof through the dissipation of assets. The meaning of dissipation, ie, what disposals of assets may constitute dissipation, is discussed in another article in this issue,1 which it is suggested the reader might prefer to read first. The current Comment is focused more on the proof required that the defendant appears likely to dissipate assets. It does so in the specific context of oral or written communications made by the parties to litigation during negotiations aimed at settling their dispute. When can any of these communications be used by a party to prove its case against the other, in this context to prove that the other is likely to dissipate its assets and make itself judgment proof? A link will be made with other decisions on proof of dissipation, and some short comment will be offered on the harmony between the concept of dissipation in the decision reviewed and the article referred to above.
Without prejudice communications
A “without prejudice” communication is one made during the course of settlement negotiations aimed at resolving a dispute between the parties. This kind of statement cannot generally be used against a party who makes it in any subsequent legal proceedings in which that party is involved, either with the other party or a third party.2 Its justification and juridical basis “rests partly upon the intentions of the parties and partly upon the public policy of encouraging people to settle their disputes without resort to litigation”.3 The parties may agree that a communication satisfying public interest is not subject to the “without prejudice” rule, although they seemingly cannot make something incapable of satisfying public interest “without prejudice” simply by agreement.4