"Without Prejudice"

In business, the use of the term "without prejudice" is right up there with "deliverables", "sustainable", and "awesome". It signals that you are getting legal, without the tedium and expense of involving a lawyer. It offers the romance of secret communications combined with the opportunity to say something cutting and clever in an off the record sort of way, in case it turns out not to be so clever after all.

The problem with this approach is that the rule is not that straight forward. If you get it wrong you may have made a statement against your interests in a legal world which is obsessed with not admitting anything without careful consideration in case it is wrong, or the goal posts shift.

The courts wish to encourage frank communications between parties to negotiate a settlement of a dispute without fear that admissions in such negotiations will be placed before a court as evidence against them. Therefore, communications made in a genuine attempt to negotiate a settlement are treated as "without prejudice" i.e. off the record. "Genuine" means that point scoring, threats, and assorted other abuse are not covered.

You cannot hide behind the words "without prejudice" to mislead the court. Therefore, it is a bad idea to admit that the other side is right in settlement negotiations and then try to deny it before the court. It will not allow you to cover up fraudulent activity or your misleading conduct during settlement negotiations.

If you wish to produce a communication to the court on the question of costs, it is best to use the expression "Without prejudice save as to costs".

One judge identified a superstitious obsession, that the expression "without prejudice" is possessed of virtually magical qualities, and that anything done or said under its supposed aegis is everlastingly hidden from the prying eyes of a Court." If you have such an obsession, I suggest that you get out more.

© Paul.Brennan 2013. All rights reserved.

 


 

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