You may have heard the term ‘without prejudice‘ but what does it actually mean, and how can it help you? This article will demystify the legal jargon and answer both these questions.

Section 131(1) of the Evidence Act 1995 (Cth) reflects this, stating that any communication between the disputing parties during negotiation cannot be used as evidence in court. ‘Without prejudice’ can apply to written correspondence or in oral communications between parties.

How ‘Without Prejudice’ Works

Simply writing ‘without prejudice’ on a letter or a document is not enough to attract without prejudice privilege or protection. The court, where necessary, will look at the circumstances surrounding the communication. Without prejudice privilege only protects parties who are engaging in genuine settlement negotiations in an attempt to settle legal proceedings, or where other dispute resolution avenues have commenced. Simply being involved in commercial negotiations will not allow you to claim the without prejudice privilege.

However, without prejudice privilege will still apply even where parties have not expressly stated this in their communications. The court will look to whether the parties intended to negotiate to resolve their dispute and reach a settlement. Similarly, the protection can apply to a chain of correspondence, even if not all pieces have been clearly marked to be ‘without prejudice’.

When You Should Not Use the Term ‘Without Prejudice’

The term without prejudice is used too often by people where they do not intend the correspondence to attract that protection. Examples where people misuse the term include:

  • correspondence that is unrelated to settling a dispute;
  • letters of demand where you are not making any concessions or discounting the amount you are demanding; and
  • correspondence where you are merely trying to finalise the terms of an agreement.

Although there may be some negotiation or compromise, it is important to remember that ‘without prejudice’ privilege only applies where there is a dispute or litigation between the parties. It does not apply where you and the opposing party are engaging in purely commercial negotiations.

The Meaning of ‘Without Prejudice Save as to Costs’

Another commonly used term used is ‘without prejudice save as to costs’. This simply means that without prejudice protection applies until the court hands down a judgment. At which point, the court then turns to the question of awarding costs to the successful party, and is entitled to look at the without prejudice communications. In this context, without prejudice communications can assist by applying pressure to the other side during negotiations.

Remember, if you are engaging in discussions with another party and want your communications used in court, you need to label them as ‘open’ communications.

Without prejudice privilege or protection can be a vital tool for parties to use in dispute resolution. However, it is important that you use it in the correct context to avoid unnecessary legal arguments.

Key Takeaways

‘Without prejudice’ lets parties in a dispute speak freely in a negotiation without worrying that their comments will be later used against them in court. However, without prejudice only applies to a dispute. Parties cannot use it in commercial negotiations that are not related to a dispute.

If you need assistance with dispute negotiations, including when to claim the without prejudice privilege, call LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.

Emma George
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