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What is Without Prejudice and When Can I Use It?

General

If you have ever been involved in a dispute, you may have seen “without prejudice” written on letters and emails.  What does it mean and why do we use it?

“Without prejudice” correspondence allows people in a dispute to make concessions and compromises during settlement negotiations, in order to attempt to resolve the dispute.  Importantly, it protects the parties against the risk that their willingness to compromise during settlement negotiations will be used against them at a later stage if those negotiations fail.  Any genuine without prejudice correspondence cannot be used as evidence to prove facts at the Hearing, aside from in relation to costs applications.

We occasionally see parties improperly label correspondence with the words “without prejudice” to disparage, harass and threaten another party under the mistaken belief that such correspondence cannot be used against them at a later stage. This kind of correspondence does not attract the privilege by simply writing that it is made on a “without prejudice” basis.

In assessing whether correspondence attracts the “without prejudice” privilege, the Court would consider whether the correspondence can be considered to be a genuine attempt to settle a dispute. A court will take into account the content of the correspondence and the party’s intention behind the correspondence. A mere reference to “settlement discussions” in correspondence, in the absence of any genuine concessions or compromises, does not attract the privilege.

If you require assistance with the settlement of a dispute, please feel free to contact our litigation team on 9411 4466.