What Does Without Prejudice Mean?

Stating Communications are ‘Without Prejudice’. 

All regular communications are referred to as ‘open’ communications. 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 claim, defence or counter claim in court proceedings.  

In contrast, using the term “Without Prejudice” for a letter or conversation means that none of the parties to the correspondence can rely on it as evidence in court proceedings, unless all the parties agree to do so.  

All the content of a letter is treated as being subject to the Without Prejudice rule 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 states that it is Without Prejudice at the beginning. 

The Key Elements of Without Prejudice Communications  

For a communication to be considered ‘without prejudice,’ it must be part of a genuine attempt to resolve a dispute. This involves two key elements:  

Genuine Dispute: There must be a genuine dispute that requires resolution;  

Genuine Attempt to Resolve: Parties must genuinely attempt to resolve the dispute. It is not enough to label a communication as ‘without prejudice’; it must be part of a sincere effort to find a resolution.

Getting around the rule 

There are some instances when you can rely on correspondence that is marked as “Without Prejudice”, these include: 


If both parties agree to waive the protection of the “Without Prejudice” rule and intend for their discussions to be admissible in court, they can do so. It is better for such an agreement to be in writing.  


You will often see the term, “Without Prejudice Save As To Costs”. This means that the communication cannot be considered as evidence in the trial of a dispute but can be referred to when the court is considering the issue of costs. 

Misuse of the rule 

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 as an attempt to keep evidence from the court. 

Admission of Fraud or Misrepresentation  

If a party can demonstrate that the negotiations were tainted by fraud, misrepresentation, undue influence, or some other wrongdoing, the “Without Prejudice” rulecan be challenged. Courts may allow evidence of such wrongdoing to be admitted.

Clarification of Settlement Terms  

If the parties need to clarify the terms of a settlement agreement or interpret its meaning, courts may allow the admission of “Without Prejudice” communications to assist in resolving these issues.  

Professional Negligence Claims  

In cases involving professional negligence claims against legal or other professional advisers, communications that were marked as “without prejudice” in the underlying matter that is the subject of the professional negligence claim, will be considered by the court.  

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