What Does ‘Without Prejudice’ Mean?

Without prejudice can protect genuine settlement discussions from being used as evidence in court or a tribunal. Simply using the words does not automatically create that protection.

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The protection generally applies where there is an existing dispute and the parties are genuinely trying to settle it. It allows them to discuss offers and possible compromises without those discussions normally being used as evidence in court if settlement fails.^[1]

Why It Matters

Writing “without prejudice” on an email does not automatically protect it. Equally, a genuine settlement discussion may be protected even if those words are not used.^[1]

The protection is not absolute. Serious wrongdoing, such as fraud, blackmail, intimidation or threats, may mean the discussions can be used as evidence.^[1]

Keep an open letter before claim separate from a protected settlement offer where possible. A letter before claim sets out your case and what you want the other side to do, so you may need to rely on it later.^[2]

“Without prejudice save as to costs” generally keeps a settlement offer from the judge deciding the main dispute, but allows it to be considered later when legal costs are decided.^[3]

Our Conclusion

Use without prejudice for genuine settlement negotiations, not as a general label for difficult correspondence. Keep documents you may need to rely on in court clearly separate.

Sources

[1] Acas, Settlement agreements: Confidentiality and without prejudice

[2] Civil Procedure Rules, Practice Direction: Pre-Action Conduct and Protocols

[3] Civil Procedure Rules, Part 44: General Rules About Costs and Part 36: Offers to Settle