Without Prejudice” – What does it mean?

My solicitors sent a letter with the wording “Without Prejudice”, but what does it mean?

“Without Prejudice” rule

“Without prejudice” is a legal privilege that is used to protect communications between parties when exchanging genuine offers of settlement, preventing such offers from being used as evidence in court. This allows parties to negotiate freely without the fear that their words would be held against them later in court. The purpose of this rule is to encourage parties to have honest and open settlement negations to overall avoid lengthy, costly court proceedings.

How can the “Without Prejudice” rule be used?

In order for the without prejudice rule to be used it must be clearly expressed or implied at the time of the communication. If it is to be expressed over correspondence, it must be clearly written at the top of that letter correspondence. Alternatively, if there is to be a verbal without prejudice discussion, that discussion must be commenced with a statement declaring that the conversation is to be considered without prejudice.

Why are “Without Prejudice” communications beneficial in Family Law matters?

There are several helpful benefits to the “without prejudice” rule when dealing with a family law matter. Some of the benefits include, but are not limited to, the following:

  • Encourages open negotiations. Knowing that communications made during negotiations will not be used against parties later down the track, if the matter goes to court, will allow parties to negotiate freely;
  • Limits court proceedings. The “without prejudice” rule can help resolve matters sooner via negotiation, savings time, costs, and emotional stress for the parties involved; and
  • Encourages settlement. These communications encourage settlement because they are provided in a safe space to negotiate terms without the pressure of affecting their positions before court. Parties will be more comfortable to make concession or propose solutions that may otherwise be risky if they did not have the protection of the “without prejudice” rule.


Exceptions to the “Without Prejudice” rule

Not all communications can be protected by the “without prejudice” rule. There are a few limitations where the “without prejudice” rule does not apply. These exceptions are as follows:

  • Undue influence or misrepresentation. If there is evidence that the offer involved misconduct, such as coercion, it may allow a court to determine that the ‘without prejudice’ rule does not apply, and that coercive communication might be admissible as evidence.
  • The communication is not a part of the negotiations for settlement, or is not relevant to the subject of negotiations. If the communication does not involve genuine negotiations, it will then generally not be protected by the rule, and may be admitted as evidence in court.
  • The communication creates an offer which is accepted, creating a contract. If all elements of a valid contract are present, this rule cannot apply if an agreement is accepted.
  • The communication is criminal or tortious conduct. If a communication has been found to have criminal or tortious conduct, it will lose its protection, and it can be admissible in court.
  • If it is found that communication contributes to untrue or misleading false statements. This will also apply for communications that are oppressive, dishonest, or dishonourable.

In summary, when used properly, without prejudice negotiations are a helpful tool to enable parties to negotiate freely without fear that those negotiation positions will be raised at Court. However, this is not to say that a party can mark every piece of correspondence as ‘Without Prejudice’ and expect the rule to apply. A skilled lawyer understands when ‘without prejudice’ correspondence should and should not be utilised.

Next steps

If you or someone you know wants more information or needs help or advice with their family law matter, please contact our Intake team on (03) 8415 5600 or email us at reception@hartleyslawyers.com.au.

This article is intended to provide general information only and is limited to the Victorian jurisdiction only. You should obtain professional advice before you undertake any course of action.

 

 

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