“Without prejudice” is not without risk!
When involved in a dispute, many people will use the phrase “without prejudice” on correspondence or in relation to a meeting, without understanding what it actually means. There is a common misconception that any discussions referred to as “without prejudice” cannot be referred to in Court, irrespective of what is said.
Not so! It depends on the purpose of the communication and what is actually being discussed.
In order for communications referred to as “without prejudice” to be protected from disclosure, those communications must have been for the purpose of a genuine attempt to compromise a dispute between the parties. So settlement discussions, negotiations and proposals can all properly be said to be “without prejudice” and (if marked as such) cannot be referred to in Court. However anything else – including for example an admission of fault – will not be protected and can be disclosed to the Court, irrespective of whether the communication or discussion has been marked or referred to as being “without prejudice.”
Gavin Evans, Senior Associate Solicitor in the Commercial Dispute Resolution Team at The Wilkes Partnership, comments:
“We frequently see correspondence which a party has marked “without prejudice”, but which in fact is not protected at all because it does not contain a genuine attempt to compromise a dispute. It is very dangerous to think that simply marking a letter “without prejudice” or describing a meeting as “without prejudice”, means that party can say whatever they like without fear of it being used against them. There is no such thing as a without prejudice admission – it is simply an admission – and parties need to be very careful about exactly what they say, even in a “without prejudice” context. Parties should also consider marking any offers of settlement “without prejudice save as to costs”, indicating that the without prejudice privilege is not intended to apply when a Judge is deciding who pays the costs of litigation (where a party may want to refer to their own offer as demonstrating their willingness to settle at an earlier point in the proceedings)”.
Our Commercial Dispute Resolution Team deals with commercial disputes from the first signs of trouble through to Court proceedings and frequently advises parties in relation to all types of settlement negotiations, without prejudice meetings and other forms of Alternative Dispute Resolution such as mediation.
To discuss any of these matters in further detail, please contact Gavin Evans on 0121 710 5950 or firstname.lastname@example.org .