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Without prejudice – what does it mean?

Writing without prejudice lettersNB: Are you visiting because you have a >> court hearing coming up?

Without prejudice – what is it?

Without prejudice is one of those legal phrases which are often used in casual conversation, but what does it really mean?

Without prejudice is a useful way of protecting your position in a dispute. Say you are a landlord and have a dispute with your tenant about a broken fridge freezer.

You are pretty sure that they damaged it during a party, they are positive that it was already broken when they took the flat over. It was brand new and to get a replacement is going to cost you £600.

You are very busy right now and don’t really want the hassle of dealing with a court claim. You would be prepared to accept just £300 just to get rid of the problem so you can move on.

However if the matter can’t be settled and you DO have go to court, you would want to claim the whole £600. If you offer to accept £300 now, will this prejudice your claim? Will the Judge say “Well if they were prepared to accept £300 for it back in August, their claim for £600 must be grossly inflated and should be disallowed?”

The answer is that if the offer is made ‘without prejudice’ he won’t (or shouldn’t) ever see it. Because without prejudice offers are confidential, and information about them should not be given to the Judge (or arbitrator if this is an arbitration) during the hearing.

The only time the Judge gets to hear about the offer is after Judgment is made. If the Judge, quite independently, comes to the conclusion that the landlords case is not the best, but that he should at least be entitled to £300, the landlord can say ‘Well I made an offer to settle for that back in August, but the other side rejected it”.

Then the Judge may decide to make a costs order, ordering the tenant to pay more in legal costs than he would normally, on the basis that the tenant has been wasting his time as the case could have been settled earlier. The courts are so busy now, and so underfunded, that wasting the Judge’s time is almost a capital offence.

Using without prejudice in legal cases

The example above is only a small fictitious case to illustrate the point. In big litigation cases run by solicitors, there are always negotiations to settle (and in fact most cases are settled before trial). The solicitors will generally have two completely separate sets of correspondence, the ‘open’ correspondence and the ‘without prejudice’ correspondence.

So for example the solicitors might write quite an aggressive letter setting out all that is wrong about the other side’s case, and then in the same envelope include a ‘without prejudice’ letter offering to settle the claim for £5,000!

If the attempts to settle fail, and the claim comes to trial, the open correspondence is generally put in a bundle for the Judge to see. It is very important when doing this that none of the ‘without prejudice’ correspondence is included by mistake, as if it is and the Judge sees it, in some cases there may have to be a re-trial. Which could be very expensive.

So that is without prejudice.

Three important points

There are three important things you need to know about without prejudice. To be able to use it, and prevent your discussions being used against you if your case comes to trial:

  • There must be a genuine dispute underway
  • Your discussion/letter must be a genuine attempt to resolve it, and
  • You must keep your without prejudice negotiations private or you may lose your right to confidentiality.

Also note that correspondence can be judged to be without prejudice even if it does not say it is, but it is best to write ‘without prejudice’ on the letter anyway so there can be no mistake. And if you have ‘without prejudice’ discussions, make sure you keep a careful note of everything that was said.

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6 Responses to Without prejudice – what does it mean?

  1. Thanks Tessa,
    I got an e-mail with that on when I was involved in a dispute and from your explanation I sort of understood what it meant but this clarifies it.

    Kind Regards

  2. Thanks for the information which has clarified the jargon for me. I am currently in a dispute with my local authority landlord who is trying to end my tenancy. The authority has put forward a proposal (termed ‘offer’ initially by a solicitor) ” without prejudice as to costs”, to adjourn for six months. In your opinion, should l take this to mean that l have a strong case against them?

  3. Not necessarily. They may just be protecting their back. You should get some legal advice from a housing solicitor.

  4. Hi Tessa

    I am currently taking the council for court for possible misfeasance/negligence, and damage caused to my property by their contractor – this contractor has been sued previously to my knowledge (additional info.) The LA have acted in a way as to affect my enjoyment of home and the right to exercise that right to express myself in order that works are completed properly and without unnecessary and inconvenience — the situation has been going on since March 2008. They have sent me a letter “Without Prejudice” outlining and denying any such claim to events that have occurred. I have evidence to suggest contrary to that!! My questions would be:

    Should I use “Without Prejudice” in a return letter and;
    Will a judge be able to review this letter if it does go into court; are there any implications that could affect the case, do you think?

    Kindest regards & thank you.

  5. It is probably best to put ‘Without Prejudice’ on the reply. Without prejudice correspondence is not supposed to go before the Judge in a trial. However accidents do happen.

    I have heard of cases for example where re-trials have had to be ordered (at great expense) because some without prejudice correspondence got into the Judge’s bundle by mistake.



About the post author:

Tessa Shepperson

Tessa is a lawyer and specialises in creating products and services which help landlords and letting agents learn and understand landlord & tenant law. For example, she runs the Landlord Law website (now in its 14th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google

The Landlord Law Blog from Tessa Shepperson

Tessa is an English lawyer specialising in residential landlord and tenant law.

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