What does 'without prejudice' mean?

When instructing a lawyer, you may have come across the statement ‘without prejudice’ and wondered…what does this actually mean? Here, we explain the term, why lawyers use it, and when it will apply in communications.

Without Prejudice Meaning

The basic meaning of ‘without prejudice’ is that statements made in the settlement of an existing dispute cannot be relied upon as evidence against the interests of the relevant party if negotiations fail and the parties then have to formally engage in a dispute resolution procedure. In other words, if the party says something that might be considered an admission against their interests, they cannot be prejudiced by it if the parties later engage in litigation, arbitration, tribunal proceedings or another form of alternative dispute resolution.

Why do lawyers use ‘without prejudice’?

The main reason that lawyers use the term is to encourage open and free discussion in the settlement of disputes, with parties reassured that anything said that might otherwise prejudice their interests cannot be used against them. This is thought to encourage resolution out of court which, in turn, reduces costs for all sides and aids in case management for the courts.

When will a communication be ‘without prejudice’?

It is important to emphasise that the use of ‘without prejudice’ does not automatically qualify all communications made alongside it for protection. It will only apply where the statement, written or oral, has been made in the course of negotiations as a genuine attempt to settle the dispute in question. For example, though you might see the term used in an email, it will be of no effect if the communication itself does not relate to a genuine dispute or negotiation (Unilever Plc v Proctor & Gamble Co [2001])

Similarly, just because a statement has not been expressly communicated ‘without prejudice’ does not mean that it will not qualify for protection. Again, the question is whether the statement has been made in the course of a genuine attempt to resolve an existing dispute. It is better, however, to err on the side of caution and include ‘without prejudice’ in communications expressly.

If, for example, your lawyer uses ‘without prejudice’ at the start of an email chain but thereafter omits it, all subsequent negotiations should still be covered so long as they are genuinely related to the existing dispute. Even so, if the chain of communication is broken, statements may no longer be subject to ‘without prejudice’ protection if they appear to have been made on an open basis.

Exceptionally, the parties may expressly agree to negotiate on an open basis, meaning that communications will not be protected. However, this is very rare in practice.

Want to know more?

If you are still uncertain of the meaning of ‘without prejudice’ or have engaged in negotiations relating to a settlement and you are unsure whether they qualify for protection, we would be happy to advise on the matter.

You can contact us to ensure that you are well informed and achieve the best possible advice in your circumstances.