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Without prejudice - legal jargon buster

30 November 2016

In the dispute resolution team, clients often come to us brandishing a raft of correspondence they have sent and received headed with the words ‘without prejudice’.

The phrase means that such correspondence will usually be prevented from being put before a court.

In other words, it attracts the benefit of a blanket rule whose purpose is to allow parties to negotiate freely and to not concern themselves that statements made during those negotiations may be used against them later in court. Such communications and documents are described as ‘privileged’ and this privilege may only be waived with the consent of all parties.

However, it is important to understand the impact this can have later on and whether the words ‘without prejudice’ (WP) will actually have any effect.

For the statement to bite there must be a dispute, not just the possibility that one might exist later. For example, letters (stated to be WP) written by one party at a time when there appears to be a claim but which has not been contested by the other party cannot be without prejudice. Such letters may therefore be put before the court.

Further, any communication that is expressed to be WP must demonstrate a genuine attempt to negotiate settlement. The communication will not benefit from the WP rule if it is not, in substance, a genuine attempt to settle an existing dispute. Equally, a communication that is not expressed to be WP may still benefit from the rule if it is, in fact, a genuine attempt to settle.

Finally, it is also sensible to consider whether you, in fact, want your communications to benefit from WP privilege. For example, if you are serving a formal notice under a contract or lease (such as a termination or break notice) then you almost certainly do not want to mark it WP as it may later be ruled invalid.

For certainty as to the status of your communications in relation to a dispute, or potential dispute, we suggest you seek legal advice as early as possible.

Nick is a member of our litigation and dispute resolution team and handles a wide variety of work for both commercial and private clients. This includes contractual disputes, landlord and tenant matters, property disputes and professional negligence claims. He is an accredited civil and commercial mediator.

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Nick Southwell BA (Hons)
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Nick Southwell, litigator at Willans LLP
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