During a court case and quite possibly even before, the phrase “without prejudice” will invariably be mentioned by your lawyers and even the other party, but what does it really mean?
When resolving legal disputes, involving the court is considered a last resort. The court expects parties to try to reach a negotiated solution. Circumstances do not always lend themselves to a settlement and sometimes a trial is inevitable, but one of the tactics a litigator has in their settlement arsenal is to communicate without prejudice (WP).
The WP rule
The WP rule is there to prevent statements made either in writing or orally in a genuine attempt to settle an existing dispute, from being put before the court as potential evidence of an admission.
The rationale behind the rule is that parties are able to speak freely in the knowledge that what they have said and particularly, any admissions which they have made in the pursuit of a settlement, cannot “come back to bite them”.
Parties whether legally represented or not will often stamp their written correspondence with the magic words “Without Prejudice” or squeeze them into any conversation without understanding whether what is written or said is properly protected by the WP rule.
It is important to recognise that the rule very much only applies in substance. Simply labelling your email as without prejudice may not trigger the rule. The key here is that what is being said or written is part of a genuine attempt to reach a compromise.
Exceptions to the WP rule
As is always the case, there are exceptions to the rule where correspondence loses its WP protection. The most common / important ones being:
- Where the issue is whether the WP communications have resulted in a concluded settlement agreement.
- As evidence of misrepresentation, fraud or undue influence.
- As evidence of perjury, blackmail or other unambiguous impropriety.
- To explain delay in a matter. The content of the WP exchanges must not be divulged but their existence can be.
- As evidence about the reasonableness of a settlement.
- On the question of costs when the parties have written “Without Prejudice Save As To Costs” on the offer, the offer will need to be considered once liability on the actual claim has been decided, in order to establish who is liable to pay for the costs incurred by both parties.
Off the record
Occasionally you may hear the expression “off the record”. This is not the same as without prejudice and it does not legally achieve status although it is a very loose approximation of the effect.
If it is ambiguous as to what is meant at this point, it is always best to clarify if the other party intends it to be a genuine attempt to settle the dispute and therefore without prejudice.
Take-away
If there is one takeaway here to remember, it is that simply labelling something as without prejudice does not automatically mean it is protected by the rule, and the email or letter might be read by the Judge at trial which was the last thing which the author wanted.
It is not sufficient merely to label everything WP. The contents must form part of a genuine attempt to reach a settlement or compromise.
For further information on without prejudice or any element of legal dispute resolution, you can talk to one of our team at 0161 969 3131 or fill in our contact form.