In the heat of a dispute, clients may desire to reach a resolution without giving ground in open correspondence. This is where the ‘Without Prejudice’ label can be used to protect genuine attempts of settlement. In litigation, communication marked as “Without Prejudice” is generally protected from being shown to the court when a case is being determined. The purpose of this is to allow parties to make concessions in open correspondence, that will not be used to undermine their case at trial.

What Does “Without Prejudice” Mean?

The English legal system encourages parties to explore settlement and resolution at the outset of litigation as per overriding objectives found in Part 1 of the Civil Procedure Rules. Without Prejudice Communications creates a safe space for parties to correspond candidly without fear that any concessions made will be used against them moving forward.

Main Points And Practical Tips

The Without Prejudice label can be utilised in different contexts. It applies to both written and verbal exchanges when parties are negotiating. Whether parties are sending settlement emails and letters or having settlement meetings, the Without Prejudice protection can be utilised.

Parties should be careful when seeking to rely on the “Without Prejudice” protection, as failure to apply the label correctly, could lead to the protection being waived, allowing the opposing party to share the communication to the court, which could be a detriment to the case. When using the label, the following points should be considered:

• There must be a genuine attempt to settle. Parties should refrain from restating their pleaded case without any compromise as the label could be regarded as decorative and the protection from the court may be waived.
• The content of the communication is significant; however, it is good practice to clearly mark all without prejudice communications correctly. To achieve this, the communication is often headlined as “Without Prejudice” or clearly declared if being orally communicated.
• Although not mandatory, it is good practice to separate “Without Prejudice” communication from open communication.
• Parties should obtain legal advice to ensure the label is used correctly and effectively.

How We Can help?

When used properly, the “Without Prejudice” label can pave the way for early and amicable resolution. Parties can negotiate freely without the fear that the exchange can be used against them in court. However, the label comes with risks and pitfalls when misapplied.

At TV Edwards, our dispute resolution team can guide you through settlement discussions with strategic care, helping you protect your legal position while exploring constructive outcomes. Contact us on 020 3440 8000 or email disputes@tvedwards.com