What “without prejudice” means

Written by Christopher Burgon

Have you noticed your solicitor use the term “without prejudice”? Has the term ever been explained to you? Here is some information about what without prejudice means and how to use it.

Broadly speaking, in litigation the “without prejudice” rule allows you to make a compromise whilst still being able to pursue your claim for its’ full value.

All regular correspondence is referred to as ‘open’ correspondence. This means every email, letter or conversation which is not marked or said to be “without prejudice” can be used by either party in support of their argument in court proceedings. In contrast, using the term without prejudice for a letter or for a conversation means that none of the parties to the correspondence can rely on it as evidence in court proceedings, unless all of the parties agree to do so.

All of the content of a letter is treated as being subject to the without prejudice rules if it simply has the words “without prejudice” written at the top of the letter. Similarly, a conversation will be treated as a without prejudice conversation if one of the parties says that it is “without prejudice”. For example, when calling to discuss a case, if one of the parties says, “This conversation should be considered as being “without prejudice””, then the rule will apply to that conversation.

The without prejudice rules reflect the general public policy to promote the settlement of disputes without court action. Use of the term is limited only to communications made in a genuine attempt to settle an existing dispute. The term is often (sometimes deliberately) misused and it should not, for example, be used simply to try and gain a concession for a matter that is already settled, such as an agreed unpaid debt, or to try and hide evidence you would prefer the court not to see.

An example where “without prejudice” might be sued correctly is as follows: A sues B for damages of £150,000. A’s solicitor writes to B’s solicitor saying A will accept £125,000 if that sum is paid immediately. If this offer is made on a without-prejudice basis B cannot refer to this letter at trial, if he rejects A’s offer, A can still try to obtain the judgement for the full amount of the claim of£150,000.

If you want a letter or document to be considered as being without prejudice, you must clearly state the words “without Prejudice” on the letter or document. If you have a verbal conversation about a genuine attempt to settle the case, you should state at the beginning of the conversation that it is “without prejudice”.

If you would like a document or conversation to be considered as being without prejudice but do want to rely on it in the specific circumstances of a Judge considering awarding costs at the end of a court hearing, you should write or say, as appropriate, “without prejudice save as to costs”.

If you need help to settle a dispute please contact me. Either by telephone on 0207 226 3583, by email: cb@christopherburgon.co.uk, or by using the call back feature on this site.