"Without prejudice": more than just a label?
Updated: 2 days ago
You may have wondered what the words "without prejudice" mean. In simple terms, the without prejudice (WP) rule generally protects genuine settlement communications, most commonly in a dispute context.
The substance of those communications usually cannot be relied on as evidence in proceedings about the dispute. The rule applies in various dispute resolution processes, not just court proceedings.
The purpose of the rule is to allow parties to communicate openly, make offers or concessions and explore settlement without those discussions later being used against them.
However, the label isn't magic because the substance (rather than the label itself) and the context of the communications determine its application. So, simply adding this label doesn't automatically attract the protection, nor does its absence necessarily remove it.
It's also important to distinguish "without prejudice" from "without prejudice save as to costs" (WPSTC). WPSTC communications remain protected while the substantive dispute is being decided, but can be relied on when the allocation of the parties' costs is considered. The intention behind it is to encourage parties to consider and engage reasonably with settlement proposals made at earlier stages of the dispute.
WP protection is not absolute and its application can be nuanced - it's important to understand when and how it applies, both to your own communications and those of the other party.
If you are unsure about the status of communications relating to a potential or existing dispute, Via Legalis can advise on how to handle them and protect your position.
The content published in this blog provides high-level legal information and insights only. It is necessarily general in nature and does not constitute legal advice, nor should it be relied upon as such. The law and regulatory position reflected in the content may change, and we do not undertake to keep blog content updated. Always obtain legal advice by reference to the specific facts and circumstances of your particular matter.