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Clients often wonder what exactly ‘Without prejudice' ("WP") means and / or when to mark communications accordingly.

Statements made in a genuine attempt to settle an existing dispute should not be put before the court as evidence of admissions of wrongdoing and are privileged in that they are private between the parties. Generally, they cannot be referred to in court, unless both parties agree to waive privilege.

At Hay & Kilner, we have dealt with many cases where a client has set out its position to its opponent in writing in a dispute before litigation, and has marked that communication WP. In fact, these are of course statements one would certainly want the court to see. WP communications can take place at any time, but there must be a dispute. For example, general correspondence regarding how a liability is to be paid, or seeking time to pay a debt, would not need to be marked WP.

However, just using the words 'without prejudice' in a letter or spoken in a meeting will not automatically give protection from disclosure in later court proceedings. It is a question of substance, not form. If the Court had to determine whether a communication should be afforded WP protection, it would apply an objective test to work out the reasonable intention of the author, and how it would be understood by a reasonable recipient.

In order for the communication to qualify for protection there must be a 'concession' to the party's position. A 'concession' in this context is not an admission of wrongdoing, but rather a statement made by a party against its own interest. For example offering to settle a claim for a lower amount than you think you are owed for commercial reasons - say, an offer to accept £20,000 against a £30,000 debt. This would be a valid ‘without prejudice' offer. It would not prejudice your right to claim the full amount if a settlement was not reached and you had to issue court proceedings to recover the debt.