What is without prejudice

Add a bookmark Your browser does not allow automatic adding of bookmarks. What does the phrase "without prejudice" on a letter mean? Was this article helpful? Yes No. Read more items tagged with the same topics Employment disputes.

About this resource Status This resource is kept under review and updated in line with developments. Publisher XpertHR. When To Include Ok. Book my demo. Learn more Customers Pricing Take a free trial. Get in touch Contact us Feedback Subscribe. Connect with us Twitter LinkedIn Facebook. We set out the key points you need to know in relation to this principle, and how to use it effectively to protect your own position.

Confidential interactions both written and verbal between parties that are making genuine attempts to resolve a dispute are often marked "without prejudice" WP. This is effectively shorthand for saying: 'whilst I am trying to reach a settlement with you, I'm not admitting any part of the case or conceding or waiving any arguments or rights - so, my offers to achieve a commercial deal are without prejudice to my primary position that I'm right and you're wrong'.

In this scenario, correspondence and discussions are confidential and cannot be shown to the court or any other party, unless all parties to the communication have agreed to this or one of the exceptions - as to which see below - applies.

By contrast, sometimes, parties can choose to negotiate openly not confidentially - in this case, any related notes, documents and correspondence will, in principle, be disclosable to the court and other parties.

The WP rule is to encourage settlement discussions without parties weakening their position in the formal dispute. Basically, if this rule applies, people can speak and write openly without fear that what they are saying may be used against them in court or arbitration. There are no rules about this but generally, at the top of any document or in the subject line etc - so that it is instantly clear to the reader.

In any discussions or meetings, where relevant, it is best to mention this right at the outset - see the next section on this also - and to seek confirmation from the other party that they agree to the communication being without prejudice. Not necessarily. Bear in mind however that forgetting to apply the WP label can lead to a costly dispute as to the true basis of the communication WP or "open" , especially where one stance favours one party in particular.

This is best avoided by obtaining confirmation from the other party that they agree to the communications being without prejudice.

If you forget to use the label WP and an argument arises about confidentiality at a later stage, you will not necessarily lose as a result of not marking the email say WP , but it is likely to make it more difficult to persuade the court you are right. Be cautious and use the WP label appropriately when you are in negotiations or discussions. A court can allow WP material to be used where the justice of the case requires it, although even then, that use would usually be limited to specific purposes only as opposed to allowing the WP material to be used generally.

The most important examples of when a court may decide that WP material can be used include:. This is not an exhaustive list, but indicates circumstances where a court may consider that WP material can be used. See our separate note - What do I need to know about Part 36 offers to settle? The key point is to be aware that this WP "protection" is potentially available in particular circumstances, and to know what it means, so you are able to protect your position during negotiations.

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