The term ‘Without Prejudice’ arises in communications between lawyers on a frequent basis and clients engaging in litigation or negotiations might be invited to take part in a ‘Without Prejudice’ (or simply ‘WP’) meeting but when can ‘Without Prejudice’ be relied upon and what is the extent of the protection that this affords users of the phrase whether or not the author of the communication is a lawyer?
At its most basic the phrase is used to convey that the content of a communication or meeting between parties cannot be used by the other party should the matter being discussed ultimately reach court. This allows a party to make concessions or settlement offers which will not affect the outcome of a later hearing in court if negotiations prove unsuccessful. However there are limits to precisely which types of communication ‘Without Prejudice’ may be used and this must be determined by reference to the particular circumstances and the intention behind communication itself.
In order to benefit from the protections of ‘Without Prejudice’ correspondence or discussions it is necessary that the communication be made with the intention of genuinely pursuing settlement or furthering the negotiation of a disputed matter. While it is possible to benefit from the protection without expressly using the term it is advisable to include the words ‘Without Prejudice’ to avoid any future doubt or argument over admissibility. Equally alternative terms should be avoided for the same reason, stating that something is ‘confidential’ or ‘off the record’ will not necessarily make it so in the eyes of the court and may not provide the communication with the same protections as a ‘Without Prejudice’ communication will.
As more and more communication takes place by email, text and other messaging services it is also of note that a chain of communication beginning under the umbrella of a ‘Without Prejudice’ conversation will ordinarily continue on that basis even if the term is not restated in every subsequent message. However care should be taken that the chain of communication is not broken and begun again without the benefit of ‘Without Prejudice’ and if in doubt it is better to restate the intention that ‘Without Prejudice’ continues to apply rather than risk losing the protection of this tricky term at a later date.
Nitin Khania – BTMK