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Cutting through the legalese: Without Prejudice (save as to costs)

Katie Pickering explains the meaning of “without prejudice” and advocates proper use of the phrase

During the pre-action stages of a civil claim, the proceedings and even during the trial itself, there will be opportunities for both sides to negotiate and try to agree a settlement. Any negotiations that take place in a genuine attempt to settle, should be on a “without prejudice” basis.

The use of the term “without prejudice” means that statements made in correspondence marked with the same, will generally not be admissible in court as evidence against the person making the statement.

Here are a few basic points:

  • The purpose of “without prejudice” is to encourage the parties to settle the dispute and avoid litigation.
  • If a party attempts to settle on a “without prejudice” basis, such communication cannot be used against that party if the matter is put in front of the court.
  • “Without prejudice” communications do not stop at written documents; they can include meetings and oral communications as long as one party states it is on a "without prejudice" basis.
  • “Without prejudice” correspondence cannot be referred to in court or included in the disclosure process.
  • If a document is marked “without prejudice save as to costs”, it means at the conclusion of the trial when costs are considered, the communications can be used to determine that issue.

If a settlement is reached, “without prejudice” correspondence can be produced in court to show the terms agreed by the parties. This is not always necessary but sometime useful if a dispute arises.

The key lesson here is that any concession or genuine attempt to settle should be noted as being “without prejudice”, otherwise it can be referred to in open court and relied upon by your opponent as an admission. 

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

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