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Do you know what the legal phrase “without prejudice” means?, Rob Stubbs, Head of Dispute Resolution at Banner Jones said, “This is a term that is used by lawyers and is often misused by litigants when they communicate with the people with whom they are in dispute prior to involving their solicitor”.

“Without Prejudice” is a term that means that there is no admission of liability and is commonly used in the context of negotiations, with the aim of settling a dispute. So, for example, if you were engaged in a dispute with your neighbour and you sent them an email headed “without prejudice” and offering £1,000 to settle their case, they could not then present this email in a subsequent court hearing.
This prevents the opponent saying “see, she offered me £1,000 so she must have thought I was right” and instead allows parties to explore the possibility of settlement more openly.

What the phrase does not mean (and it is often misunderstood to mean) is “whatever, I say in this meeting or put in this correspondence cannot subsequently be used as evidence in court”. A recent case underlined this very point. The case arose from a landlord suing his tenant for rent arrears where the tenant appealed a court order because, they argued their admission of guilt was made in a meeting that was “without prejudice” and was, therefore, inadmissible.

The court rejected this argument; with the judge saying “I am satisfied that this was not a without prejudice meeting. It was not for the purpose of a genuine attempt to compromise a dispute between the parties. It follows, therefore, that privilege does not attach and, therefore, there can be no question of any waiver”.

In summary, communicating on a without prejudice basis can be a useful way to explore the possibility of settlement. It will not, however, result in all communications being deemed to be privileged, if there is no genuine attempt to compromise. The court will consider the content and underlying purpose.

If you would like assistance in relation to a civil dispute, call our Dispute Resolution team on 01246 560 560 for further information. Appointments can be made in Chesterfield, Dronfield, Mansfield and Sheffield.

Rob Stubbs
  • Director
  • Solicitor
  • Head of Dispute Resolution

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