Can an answer to a letter originally written without prejudice be examined to see if it is in compliance with the rules?
British Columbia, Canada
The following excerpt is from Cominco Ltd. v. Westinghouse Canada Limited, 1981 CanLII 698 (BC SC):
An answer to a letter originally written "without prejudice" must also be treated as being made "without prejudice"; Walker v. Wilsher, supra, at p. 337. Therefore the letter of 26th August 1980 cannot be examined to see if it is in compliance with the rules. Besides, my reading of the rules indicates that this procedure is on a more formal basis than a mere exchange of correspondence. No doubt should be left in the mind of a defendant that a plaintiff is invoking the remedy given by these particular provisions. Where such an "offer" is made, it should be in Form 61, or as close to it as possible. Then the defendant is on notice he may be liable for double costs.
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