Without prejudice to what???

We often see ‘without prejudice’ on communications between parties in dispute. The suggestion seems to be that adding that banner to a letter might offer some magical protection down the line if the dispute is not resolved.  It doesn’t, but a fuller explanation of the principle of ‘WP’ might be useful.

The term ‘Without prejudice’ is designed to allow parties to negotiate without fear that concessions made will be taken as admissions harming their legal position if the dispute is not resolved.

Typically, parties in dispute write telling each other what their case is and why they are right.  That might then be carried on by solicitors, ultimately ending in legal submissions before a judge who is asked to decide who is right. 

But, settlement negotiations might also at some point take place.  There the parties need to be able to speak to each other more openly, softening their stance on certain issues, offering concessions in order to inch towards an accommodation that diverts the need for a full blown argument in court.  If they concede any part of their claim though, that could seriously damage the case at trial. So, instead, the negotiations are carried on without prejudice to the case that will be argued in court. 

All communications that contain a concession need to have the clear label ‘without prejudice’, whether by letter or e-mail, and any discussion or meeting needs to be formally agreed to be ‘without prejudice’.  It is a simple point but the shelter is vital to allow safe settlement discussions.

Conversely, writing a letter that is simply a statement of what you will be arguing at court and containing no trace of concession, does not need to be labelled ‘without prejudice’ and even if it carries that banner it will not be treated as such.  Adding the words 'without prejudice' does not magically convert the letter into something it is not and only leads to confusion.  A clear idea of the purpose of the letter is important and then the occasional random labelling of WP ought not to crop up and confuse issues.