Has the UAE recognised the principle of Without Prejudice Privilege?
In a recent judgment issued on 22 October 2024, the Dubai Court of Cassation in case No.486/2024 appears to have recognised the principle of without prejudice privilege, a cornerstone of common law dispute resolution. The judgment articulates that admissions made during settlement discussions are not admissible in court proceedings.
The Cassation judgment states [unofficial translation]:
“Evidence or admission shall not be taken against the party who presented it, since he presented it without prejudice to rights, and it shall enjoy immunity preventing it from being considered as evidence against him when the case is heard before the court”
The Cassation judgment (and the Appeal Court judgment that it upheld) appears to mark a shift in the legal landscape of the UAE, indicating a potential alignment with common law legal standards that protect the confidentiality of settlement negotiations. The judgments suggest that the onshore UAE courts may be willing to recognise a principle to allow parties to negotiate freely, without the fear that the admissions will be used against them if the dispute proceeds to litigation.
That said, the Cassation judgment, while influential, does not establish a binding precedent in the UAE legal system. Judges in Dubai and other courts in the UAE are not legally bound to adhere to this decision, and the extent to which the 'without prejudice' rule will be applied in practice remains uncertain. Both the Court of Appeal and the Court of Cassation do not explain the reasons for their respective decisions, and it remains the case that the UAE Civil Code, Civil Procedure Code, and Law of Evidence do not recognise the principle of without prejudice privilege.
Therefore, until there is a consistent line of judgments affirming this principle, intervention by the Authority for Unification of Local and Federal Judicial Principles or UAE Law is amended to explicitly recognise ‘without prejudice’ as a privilege, it remains the case that parties engaged in settlement discussions in the UAE should proceed with caution.
