If you have been looking at correspondence between your lawyer and the opposing party’s lawyer, you have probably come across the term ‘without prejudice’ and wondered what it actually means.
What is without prejudice?
It is a term used by lawyers to protect written correspondence or oral communication that is exchanged between parties with the primary intent being to settle the dispute.
What does it do?
If settlement negotiations between the parties stall and their dispute progresses to a court trial, written correspondence or oral communication that were exchanged during settlement negotiations are protected by way of privilege so that it cannot be tendered as evidence.
Without prejudice communications can encourage parties to negotiate with each other without the worry that it will be tendered as evidence and used against them.
Not all correspondence that is marked “without prejudice” attract the same privilege of being unable to be produced as evidence during a trial.
On the other hand, some correspondence that is not marked with”without prejudice” can attract the same privilege. It all depends on the purpose of the communication.
What must the purpose of communication be?
Each piece of correspondence must have the primary intent of settling the dispute for the privilege to apply to that particular correspondence. This is the case whether the correspondence is written or by oral communication.
The court must be satisfied that the parties were genuinely negotiating a settlement in order for privilege to apply to the correspondence.
Overuse of Without Prejudice
You may find that some lawyers overuse the term “Without Prejudice” by writing it on every single piece of correspondence to the opposing lawyer even though the primary intent of the communication is not to settle the dispute.
However, privilege may not always apply to all of these pieces of correspondence. So if the dispute was to go to trial, then they may be tendered as evidence.