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Last edited 18 Jan 2021
‘Without prejudice’ is a legal rule that governs the admissibility of evidence and is often used when parties are in dispute. It may be used on written communications (letters and emails) and in meetings and other discussions.
‘Without prejudice’ (WP) indicates that the contents of the communication shall not be used in a court case to the detriment of the writer. Statements made in writing or in meetings and discussions as part of a genuine attempt to settle an existing dispute can be prevented from being put to a court as evidence against the party that made them if they were made without prejudice.
Typically, parties in a dispute will write to each other setting out their case and why they feel they are right. All communications need to be clearly labelled as WP if they contain a concession, while meetings and discussions must also be formally agreed as being WP prior to starting.
The without prejudice (WP) rule is useful as it can encourage parties seeking potential litigation to negotiate and settle out of court, knowing that they may negotiate without fear in settlement discussions. Statements or concessions they make (including any admissions made in trying to settle the matter without going to court) may not be used against them if the discussions fail and legal action is necessary. The parties will have set out their position without prejudice if the matter is argued in court.
However, including the words ‘without prejudice’ does not automatically offer any magical protection. If a case subsequently goes to court, the statements made must constitute a genuine attempt to settle an existing dispute. A letter that is nothing but a list of what the party is going to argue in court and with no hint of concession does not have to be labelled as WP. Even if it is, it will not be treated as such. In addition, adding ‘without prejudice’ when it is not applicable may simply lead to confusion.
See: Transform Schools (North Lanarkshire) Limited v Balfour Beatty Construction Limited and Balfour Beatty Kilpatrick Limited. Ref https://www.scottishconstructionnow.com/article/laura-mccorquodale-why-without-prejudice-wording-does-not-create-a-magical-force-field-of-legal-protection-around-documents
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