‘Without Prejudice’…or is it?

We often have clients asking us about the effect of the ‘without prejudice’ rule throughout the course of litigation. Further, we have clients who come to us having had the ‘without prejudice’ discussion that are then surprised that the correspondence or meeting notes are used against them in proceedings.

The Basics:

• ‘Without prejudice’ communications do not need to be written – the use of the rule can cover meetings and oral communications.
• A ‘without prejudice’ communication must be made in a genuine attempt to settle an existing dispute.
• ‘Without prejudice’ correspondence cannot be referred to in court or included in the disclosure of relevant documents.
• If the inclusion of ‘without prejudice’ communication is challenged, the court will look to the substance and not the form of the document - e.g. labelling a document ‘without prejudice’ does not mean that it is and vice versa.
• The rule is not absolute – see the below exceptions.
• The rule applies whether or not the parties succeed in reaching an agreement.

Exceptions:

As ever, there are always exceptions to the rule! Here are a few examples of when ‘without prejudice’ communication can be referred to “for a variety of reasons when the justice of the case requires it” (Rush & Tompkins):

• “Without prejudice save as to costs” is often the term that is used. At the conclusion of a trial when the issue of costs is considered by the court the communications can then be used to determine that issue.
• Where the issue is whether the ‘without prejudice’ communications have a concluded agreement.
• As evidence of settlement.
• As evidence of misrepresentation or fraud.

Waiver of Privilege:

If you are ever asked to “waive privilege” of a ‘without prejudice’ communication, which means agreeing to make that communication open and therefore disclosable,  or you think it is reasonable to ask the other side to waive, remember ‘without prejudice’ communications are owned by both parties and you should check with a solicitor before doing so. Once privilege is waived you cannot get it back!

If you intend to have a ‘without prejudice’ meeting or a telephone call as a party to litigation, always confirm the agreed intention in writing beforehand and ensure that the approach is agreed.

This general note does not substitute or replace the need for legal advice as the circumstances in each case will be different. 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.