Without Prejudice Negotiations

Most correspondence between the parties in a dispute will be considered “open” correspondence that can be placed before the court at a hearing of the matter if necessary.

In contrast, negotiations that are a genuine attempt to settle a dispute are generally considered to have been made on a “without prejudice” basis. This includes anything said or disclosed during a mediation, written correspondence and verbal communications.

Correspondence between parties on a without prejudice basis generally cannot be relied on in court. The main exception is correspondence marked “without prejudice save as to costs” which can be presented to the court after a judgment has been given and when the court is deciding who should pay the legal costs of the parties.

The without prejudice rules are designed to encourage parties to resolve their dispute. You (or your legal advisors) may make concessions about your claim, in a genuine attempt to settle the dispute, knowing that the information cannot later be disclosed in court. It is important to take legal advice to ensure that you are using without prejudice correspondence appropriately.

Litigation can be a stressful and costly experience and you do have a duty to consider alternative dispute resolution including mediation If you receive correspondence relating to a contested estate dispute labelled ‘without prejudice’, please contact us at the earliest opportunity for advice tailored to your individual circumstances. As specialists in these matters, we assist our clients in resolving matters out of court, wherever possible, in a sensitive and cost-effective manner.