The legal term ‘without prejudice’ means a written or verbal communication cannot be used in legal proceedings when it is a genuine attempt to resolve an existing legal dispute.
The courts have developed the without prejudice rule to allow parties to try and settle disputes without fear those attempts will be used against them to undermine their case if it later goes to court or tribunal.
But contrary to what some might think, it’s not quite as simple or easy as slapping the words ‘without prejudice’ on an letter or email or discussion. The without prejudice protection only kicks in under certain circumstances – labels on their own won’t work.
Contents
What qualifies as without prejudice?
Existing Dispute.
If there’s no existing dispute in place, the without prejudice rule cannot apply. In this context, an existing dispute means actual or contemplated legal proceeeding, for example a court claim or employment tribunal. In the context of the workplace, a mere grievance submitted in accordance with an employer’s internal grievance procedure does not automatically mean there is an existing dispute, for the purposes of the without prejudice rule.
Does a without prejudice letter, email or discussion need to be labelled as such?
It’s common for solicitors to mark the top of an offer letter or email as ‘Without Prejudice‘ but strictly speaking the label is not necessary. So, a failure to mark an email without prejudice will not mean it’s not without prejudice; and an attempt to to make an email or letter inadmissible by marking it without prejudice will fail, unless the communication has a the necessary qualties – i.e. it is an attempt to resolve an existing dispute.
But the label is a helpful sign-post to the recipient that the sender considers the communication to be without prejudice and therefore not capable of being used or mentioned to the court, tribunal or Judge hearing the case.
Losing Protection
Understandably, the courts have developed exceptions to this rule to prevent abuse that mean the without prejudice rule cannot be used to hide clearly discriminatory, dishonest or improper behaviour from the court or tribunal . It cannnot “act as a cloak for perjury, blackmail or other unambiguous impropriety” (1).
Unambigious inpropriety
Unsuprisingly, the courts have found where a party has behaved in a particularly bad way, a communication which would otherwise be inadmissible because it was without prejudice, can be considered by the Judge, i.e protection is lost and the communication becomes open and admissible.
So what kind and level of ‘bad behaviour’ will open up the communication to be Judge?
Examples of impropriety include:
- perjury;
- blackmail;
- fraud / dishonesty;
- discrimination;
- unfounded allegations of serious misconduct with potential criminal and/or regulatory consequences (2);
- other unambiguous impropriety
High bar
The threshold level is very high. To be ‘unambigious it must be completely clear – not just a good arguable case. The evidence must show clearly the abuse of the without prejudice rule, justifying making the communication admissible.
The task of the court is to balance the public interest in disclosure of the particularly bad behaviour against the usual public interest in maintaining the privilege. Only in extreme and obvious cases will the former trump the later.
The net effect of the above is that it will be incredibly rare for a court to remove protection on the basis of unambigious impropriety. Only the most clear and extreme instances will result in protection being lost and the communication becoming admissible in court or tribunal proceedings. This is because “the public interest in the settlement of litigation generally outweighs the risk of abuse of the privilege in individual cases” (3)
Key takaways
Only completely clear cases of the most extreme and serious bad behaviour will justify disapplying the general without prejudice rule. It can happen but not often. A court will not not remove protection lightly. And that makes sense, as the underlying purpose of the rule is to give the parties comfort they can engage in settlement discussions about a dispute. If courts frequently lifted the veil of protection at the drop of a hat for lower level behaviour or unreasonableness, it wouldn’t take long before litigants were fettered from having settlement discussions for fear they would be uased against them – and in turn fewer settlements would be achieved.
Footnotes
(1) Unilever PLC v Procter & Gamble Co. 1999 EWCA Civ 3027
(2) Motorola Solutions Inc and another v Hytera Communications Corp Ltd [2021] EWCA, the Court of Appeal, Lord Justice Males.
