What Does without Prejudice Mean on a Legal Letter

Too often, the term “unbiased” is misused — even by lawyers — probably because people tend to believe that there is some kind of magic associated with the expression. This concern was poetically summed up in a 1975 Australian court decision in Davies v. Nyland: a situation in which protection was lost without prejudice resulted from the failure of mediation.10 The defendants brought a second action alleging that the first plaintiff had informed a third party that threats had been made against him during or after the mediation. The question was: could the threats be mentioned primarily or did they fall under protection without prejudice? The court held that protection generally applies without prejudice to allegations of threats in mediation. In those circumstances, however, it would be assumed that both parties agreed to waive without prejudice the protection normally afforded to mediation because the defendants denied in their pleadings that they had made threats. This is of particular importance to the defendant, as any reaction to public allegations arising from protected subject matter may be construed as consent to the waiver of that privilege. If they had merely argued that everything said in mediation is protection without prejudice, they would not have waived protection without prejudice. The “no-bias” rule prevents statements made in a sincere attempt to resolve an existing dispute from being brought before the courts. But if there is a long period after the failure of the negotiations and the beginning of the dispute, does that prevent the parties from claiming that the negotiations were without prejudice, because at that time it cannot be said that there was an “existing dispute”? How close must the failure of negotiations be to the beginning of a dispute? If you want to make an unbiased offer or have a conversation in the context of a dispute, it is best to make it clear that you want to do so without prejudice. A conversation is treated the same way when someone says it is “unbiased.” For example, if you call to discuss a dispute, if you say: This conversation should be considered free of bias, the rule also applies to the conversation.

The term “purpose” is used to indicate that an agreement is not yet binding. A document marked “subject matter of the contract” is generally not protected. In cases where you are in negotiation and therefore want impartial protection, but want your settlement offer to be further discussed rather than being fully binding upon acceptance, you must also replace the letter “contractual purpose”. This makes it clear to the other party that any proposed or discussed settlement is always subject to formal, written and agreed terms. But these two labels do completely different things and should not be confused. The purpose of the “no prejudice” rule is to encourage the parties to the dispute to seek a settlement by allowing them and their legal advisers to express themselves freely and to make concessions, knowing that their words can no longer be used against them in the courts if negotiations do not lead to an agreement. However, protection is not absolute and there are exceptions. Whether or not marked as “without prejudice”, a communication associated with dispute resolution is generally protected and cannot be used against either party.

Parties involved in a dispute generally add “without prejudice” to communications when negotiating a settlement. Communications marked “without prejudice” may not be used by the other party as evidence in court. This means that the parties can speak openly about the contentious issues without the risk of the other party later using this information against them. While there are reasonable circumstances for using the term, it certainly has no magical powers and can actually have a detrimental effect on your position if used incorrectly. 6 In Somatra v. Sinclair Roach & Temperley [2000] 1 Lloyd`s Rep 311, the Court of Appeal described the principle of “without prejudice” in its minutes of 26 July 2000. There are some exceptions to the WP rule, which means that on these occasions, WP correspondence can be summoned to court. However, in these limited circumstances, the correspondence in question can only be accepted for that specific purpose. In any discussions or meetings, if any, it is best to mention this at the outset – see also the next section on this – and to obtain confirmation from the other party that they agree that the communication is impartial. With this in mind, here are some examples of cases where “without prejudice” should not be used: This term means that protection applies only to the court until the court renders a judgment.