If you’re in the middle of a legal dispute, you might have come across an email, letter or other communication marked “without prejudice.”
But what does this mean exactly? And when should it be used?
If you are unsure what it means, when it applies or what to watch out for, this guide is for you. We’ll cover:
What does without prejudice mean?
What are the reasons for the without prejudice rule?
Without prejudice rule exceptions
Without prejudice examples
Without prejudice v without prejudice save as to costs
Should I accept a without prejudice offer?
What does without prejudice mean?
Without prejudice is a legal shield that protects certain discussions and negotiations from being used against another party in court or litigation. When it is used, these negotiations will be kept off the record and remain confidential.
When parties are in a dispute and trying to reach a settlement, they might label their talks as “without prejudice” or WP. This means that what is said or proposed can’t be used as a way to prove someone is right or wrong either in court or anywhere else unless everyone involved agrees.
When is without prejudice used?
Without prejudice is sometimes used as a tool to avoid court proceedings, and to cut down costs.
Without prejudice can be applied to all types of communication including:
Written (letters or emails)
Verbal (phone calls or meetings)
Electronic (SMS messages, Teams chats)
Even if parties don’t outright say “without prejudice,” it can also apply if it’s clear both parties genuinely want to settle the dispute.
Having said that, for the “without prejudice” privilege to kick in, you need three key ingredients:
A dispute (a real communication issue between parties);
A genuine attempt to resolve the dispute;
Without prejudice is stated upfront.
Without prejudice only covers documents or information related to the negotiation. But it does cover the entire conversation, not just certain bits. What happens in negotiation, stays in negotiation when without prejudice applies.
What are the reasons for the without prejudice rule
The main reason for using the “without prejudice” rule is to encourage open, productive communications between parties.
Under the privilege, anything discussed can’t be used against either party in further proceedings and the courts will not be able to access or review what was said.
Ultimately, this encourages open discussions between the parties without fear that their words might be used against them later.
The logic of this is, that if both parties feel able to communicate freely they will be more likely to reach a settlement out of court.
Without prejudice rule exceptions
The "without prejudice" privilege has some exceptions. This is usually because there are times when one party benefits from without prejudice talks, but the other gets a raw deal.
These exceptions were figured out by Roth L in the Unilever Plc v Proctor & Gamble Co case in 2000.
Here are the key situations when a court might allow the use of without prejudice material:
If there’s a debate about whether the parties actually agreed on the settlement;
If the material shows fraud, undue influence, lies or other clear bad behaviour;
If there’s a promise in the “without prejudice” talks that someone relies on, and then the promiser breaks it (estoppel);
If there’s a need to clarify why proceedings are delayed;
If there’s a question about whether a settlement is reasonable.
Without prejudice examples
Without prejudice communication is mostly encountered in dispute proceedings as we have highlighted above, including employment law matters and divorce proceedings.
Employment disputes
For example, an employer who wants to terminate an employee’s contract with a company might open up the conversation by saying it’s “without prejudice.” In this case, the employer can explain the reasons for the meeting and offer proposals of financial settlements in return for the termination of employment, and the employee can’t use what’s contained in these discussions as evidence in a tribunal claim for unfair dismissal.
Divorce Proceedings
For example, when reaching a fair financial settlement between soon-to-be-ex-spouses, instead of going straight to court, they can sit down and try to work out the terms themselves amicably. To facilitate an open and honest conversation, both parties might decide proposals and discussions will be “without prejudice”.
This means they might discuss various aspects of divorce, like asset division, spousal support, or child arrangements, without the fear that what they say will be used against them in court later on.
Without prejudice vs without prejudice save as to costs
Unlike regular “without prejudice” discussions, “without prejudice save as to costs” can be shown in court, but not for the usual reasons. The court won't dig into the nitty-gritty of discussion for the main dispute. Instead, they’re interested in costs - basically who pays for what. These kinds of offers are also referred to as ‘Calderbank offers’.
When you bring a “without prejudice save as to costs” move to the table, you’re basically saying you’ve been reasonable in trying to settle, but the other party is being a bit tricky, and you want the court to take this into consideration.
Dropping a “without prejudice save as to costs” note doesn’t guarantee a party will win on costs, but the court will take it into consideration when deciding who foots the bill.
Should I accept a without prejudice offer?
It is impossible to say whether you should accept a without prejudice offer or not without knowing the specific situation.
However, if you do receive a without prejudice offer, you should:
Read it carefully and assess whether you think the other party seems genuinely interested in settling the dispute and whether you think the proposal is fair;
Consult with a solicitor who specialises in the relevant legal area;
Consider whether you’d like to respond with your own ideas on how to settle things.
No one is obliged to accept an offer without prejudice. For example, you might think the offer isn’t fair, or that the other party isn’t really interested in finding a solution. In these cases, you’d be perfectly within your rights to refuse the offer and take the matter further. Just remember, it’s likely you won’t be able to use this offer in further proceedings.
Why might a party make a without prejudice offer?
Without prejudice offers and discussions are usually used as a way of settling disputes quickly, without racking up huge legal costs.
Imagine you’re in a dispute and you’re gunning for a £20,000 settlement, but deep down, you’d be pretty satisfied with £15,000. You can make a “without prejudice” offer to settle at £15,000 and if the other party agrees, then job done! The claim gets sorted without more costs piling up.
However, if the other party refuses to settle at £15,000, they can’t let the judge know you were willing to settle for less, and you can still aim for the original £20,000 in further proceedings.
Another reason why without prejudice is used is to settle small disagreements easily without blowing them out of proportion.
Get legal help with ongoing disputes and negotiations
Using without prejudice is a smart move in negotiations when you genuinely want to settle a dispute.
Here are some key points to keep in mind:
Label it right: Whether it’s a written document or an email, make sure the “without prejudice” tag is clearly visible at the top or in the subject line. If it’s face-to--face, make it crystal clear from the offset that the chat is “without prejudice.”
Be genuine: Make sure whatever you’re saying or writing is a sincere effort to resolve the dispute, or fits into the broader negotiation content.
Check your intentions: Just slapping on a without prejudice label won’t work if you're not using it with the right intentions.
Address issues early: If there’s a problem with the “without prejudice” communication, sort it out before it gets to court.
For help and advice on dispute resolution and litigation, get a free case assessment from our team and a fixed fee quote for specialist help from our litigation solicitors. Contact us today to get started.