The basic principle behind “without prejudice” communications is relatively straightforward, but as with many legal matters the devil tends to be in the detail.
Notwithstanding how both parties to a dispute may feel about each other or strength of feeling about their legal position, it generally makes sense for them to at least explore the possibility of settlement. Put simply, there are rarely any outright winners in litigation.
Either or both parties may be concerned that if they discuss settlement with their opponent and possibly make a financial or other offer to settle the claim, which does not lead to resolution, this may be used by the opponent in court as an admission.
Consequently, discussions, whether verbal or in writing, which are “without prejudice” provides a mechanism to explore settlement with comfort that those discussions will not be known to the court.
The above represents the most simple use of without prejudice communications, but care needs to be used to ensure there is no confusion about the status of discussions. Verbal without prejudice conversations are not recommended, except perhaps between lawyers, and correspondence intended as without prejudice should be expressly marked as such. Put simply, it is invariably better to have these types of negotiations dealt with by solicitors.
The position is a little more complex in that there are other applications of without prejudice negotiations. the most usual examples are :-
- without prejudice compromise agreements
- without prejudice and subject to contract commercial contract usage
- without prejudice save as to costs communications in litigation matters
Please get in touch with David Rosen for further guidance on this issue or any litigation matter.