When will communication be «unbiased»? What does it mean if a letter or email you receive is marked «without prejudice» (WP) or if the other party to the dispute offers an unbiased discussion? 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. «Open» communication means any email, letter, phone call or meeting that is not protected without prejudice. For example: under section 111A of the Employment Rights Act 1996, unlike cases of discrimination and breach of contract, no prior dispute between the parties is required to make an impartial offer for unfair dismissal actions (except for automatically unjustified dismissal claims). This is called a «protected conversation.» If an opponent unduly attempts to use material without prejudice, an objection should be filed as soon as possible. In practice, it is customary for the parties to agree on all the elements to be submitted to the court before the trial. This means that a party must be informed in advance that its opponent intends to rely on impartial evidence and can challenge it. In general, a party`s admission to something in court can be used against them. The harm rule (WP) means that statements made in a sincere attempt to settle a dispute cannot be used in court as evidence of a confession against the party who made them.

Because parties to a dispute know that offers without prejudice cannot be used as evidence of guilt in court, they feel safe when making offers to resolve disputes. The rules reflect without prejudice to general public policy to promote the settlement of disputes without trial. The use of the term is limited only to communications made in an actual attempt to resolve an existing dispute. The term is often (sometimes intentionally) misused and should not be used, for example, simply to try to obtain a concession for an issue already settled, such as an agreed unpaid debt, or to try to hide evidence that the court would prefer not to see. The main requirements for the preparation of a document relating to a communication or settlement agreement «without prejudice» are as follows: The 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? Evidence of negotiations without prejudice could be presented to explain delays in the progress of the litigation or apparent acquiescence, for example in the defence of a motion to strike for non-prosecution.15 Suppose that A, B and C are all parties to the same dispute, with A being the plaintiff and B and C being co-respondents. If A reaches an agreement with B but continues the action against C, can this be relied on as evidence in the ongoing dispute between A and C, without prejudice to the communications which led to the settlement between A and B? The answer lies in the House of Lords judgment in Rush & Tompkins -v- GLC17. Rush & Tompkins (a contractor business) was involved in a legal dispute with the GLC and a second defendant and eventually reached a settlement with the GLC through impartial negotiations. The House of Lords held that the content of these negotiations could not be disclosed to the second respondent. A contrary view would discourage parties to multi-party disputes from attempting a genuine settlement.

Lord Griffiths stated: If you want a document or conversation to be considered impartial, but you want to rely on it in the particular circumstances of a judge considering awarding costs at the end of a trial, you can write or say «without prejudice except for costs». You may have seen the words «without prejudice» plus «cost savings» or «present in the contract». This guide explains why lawyers use these terms and what they mean. Keep in mind, however, that forgetting to put the WP label can lead to a costly dispute over the true basis of communication (WP or «open»), especially if an attitude favors a particular party. It is best to avoid this by obtaining confirmation from the other party that they agree that the communication is without prejudice. So if your employer raises an issue with you in an unbiased discussion that could damage trust, you can`t use it against them. A situation in which protection was lost without prejudice arose from the failure of mediation.10 The defendants brought a second action on the grounds that the first plaintiff had informed a third party that threats had been made against him during or after 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 content must also remain confidential between both parties (and your legal representative, if applicable). An example where «without prejudice» could be sued properly is this: A sues B for damages of £150,000. A`s lawyer wrote to B`s lawyer that A would accept £125,000 if this sum was paid immediately. If this offer is made without prejudice, B cannot refer to this letter at trial, if it rejects A`s offer, A can still try to obtain a judgment on the total amount of the claim of £150,000. If you hire a lawyer, you may have come across the statement «without prejudice» and wondered. What does this mean in practice? Here we explain the term, why lawyers use it and when it is applied in communication.

[4] In evidence, if both parties to the impartial material agree that it should be admitted in court. The basic meaning of the term «without prejudice» is that statements made in the settlement of an existing dispute cannot be used as evidence against the interests of the party concerned if negotiations fail and the parties must then formally initiate dispute settlement proceedings. In other words, if the party says something that could be considered an admission against its interests, it cannot be affected by that if the parties subsequently engage in litigation, arbitration, legal proceedings or any other form of alternative dispute resolution. The rule without prejudice is a common protection. This means that only by all parties to the communication concerned can it be waived together without prejudice. Yes, and it happens frequently. This means your employer has done something wrong, but in many cases, they may want to bypass some of the lengthy layoff processes and give you an extended package instead. If you decide not to take it, it will almost certainly be removed and you will then go through the full termination process, but without increasing the severance package. You won`t be surprised to learn that most people want to walk the path without prejudice, especially if the redundancy is real. The WP rule is to encourage settlement talks without the parties weakening their position in the formal dispute. Basically, when this rule applies, people can speak and write openly without fear that what they say could be used against them in court or arbitration.

The general principles of contract law apply to agreements concluded as a result of negotiations without prejudice, so that a binding contract is formed with the acceptance of an offer. If the existence and terms of a settlement are disputed, the content of the negotiations is admissible to determine whether and on what basis a settlement agreement was reached.9 It is generally best to seek legal advice as soon as possible if you are seeking a negotiated solution with your employer.