When resolving disputes, using ‘without prejudice’ (aka “WP”) can safeguard your discussions. This article explains when and how to use ‘without prejudice’ in negotiations, helping you keep your conversations secure and your positions intact.
- The ‘without prejudice’ rule is vital for candid settlement discussions in legal disputes by ensuring communications made during attempts to resolve a conflict are not admissible in court/tribunal proceedings. This is referred to as “without prejudice privilege.”
- Communications must stem from a genuine attempt to settle an existing dispute to gain ‘without prejudice’ status, fostering an environment for honest negotiations without fear of legal prejudice.
- Exceptions to the ‘without prejudice’ rule exist to prevent its misuse, ensuring that communications aimed at concealing fraud, undue influence, or other improper conduct can be admissible in court.
Understanding the ‘Without Prejudice’ Rule
The ‘without prejudice’ rule, shields statements made in an honest attempt to resolve an ongoing dispute from being used as evidence in court. It creates a secure environment for parties to engage in candid settlement discussions without compromising their positions. WP exchanges play a significant role in employment disputes, such as ordinary unfair dismissal cases, where it fosters open discussions to resolve conflicts outside of court proceedings on a prejudice basis.
The rule applies when there is a genuine effort to settle the dispute outside of court, irrespective of whether these discussions are oral or written. Promoting the resolution of disputes is made possible by the ‘without prejudice’ rule.
The Essentials of a ‘Without Prejudice’ Communication
‘Without prejudice’ classification of a communication hinges on the presence of an ongoing dispute and a sincere effort by the involved parties to resolve it. In such a communication, the objective isn’t just to state the facts but to actively seek a resolution.
Identifying an Existing Dispute
An existing dispute, within the WP communication framework, is generally when the parties are conscious that litigation is a possibility (even if this is not their desired route/outcome).
Signs of a present conflict for WP communication encompass the parties’ recognition of the dispute and statements made in a sincere effort to negotiate and resolve the dispute. It’s a clear indicator that both parties are committed to finding a resolution and are taking active steps towards achieving it.
Making a Genuine Attempt to Settle
A genuine attempt to settle a dispute is demonstrated when parties make statements or engage in confidential interactions with the explicit intention of resolving the disagreement. This could include written or verbal communication. Examples of such attempts include confidential interactions between parties, with a clear intent to resolve the dispute.
However, not every exchange has to include some form of offer to benefit from without prejudice privilege. The protection applies even if a settlement was not ultimately achieved.
Crafting Effective Without Prejudice Letters
Clear and professional WP letters serve as effective tools for negotiation and resolution. These letters, when crafted well, can help steer discussions towards a mutually agreeable outcome. They are commonly used to commence a negotiation when an employee seeks to negotiate an exit from their current employment. How and when to use without prejudice letters can vary, but when done properly, can be very effective.
Structuring Your Letter for Clarity
A well-structured ‘without prejudice’ letter can make a world of difference in how your communication is perceived and understood. The letter should have four key sections: an introduction, the facts of the dispute, the legal application (and potential consequences) of the facts and a proposed resolution. This clear format helps in presenting information systematically, making it easy for the recipient to follow your reasoning.
Distinguishing between ‘without prejudice’ letters and ‘open’ correspondence is also important to avoid any confusion. Employing uncomplicated language is essential to ensure that the intentions and proposals are clear and easily understood, thus facilitating effective settlement discussions.
Presenting Facts and Offers Neutrally
The way you present facts and offers in a ‘without prejudice’ letter can significantly influence the negotiations. Here are some tips for presenting facts effectively:
- Present facts directly and impartially (being partisan is more persuasive than putting your own spin on the facts).
- Let the facts speak for themselves.
- Set the facts out clearly and in chronological order (if the reader is unclear on what you say happened and when all persuasion will be lost).
- Conduct the communication within the framework of genuine settlement discussions.
Similarly, presenting settlement offers neutrally in a ‘without prejudice’ letter can facilitate open negotiations without the risk of future repercussions. This approach helps to uphold a non-confrontational atmosphere and encourages a constructive discussion aimed at resolving (this is difficult to do when you are close to the dispute personally).
‘Without Prejudice Save as to Costs’: A Special Case
The ‘without prejudice save as to costs’ is a specific application of the ‘without prejudice’ rule. This term signifies that the communication cannot be presented to the court until the main issue has been decided, with the exception of the issue of costs. It safeguards written and oral communication from being used as evidence in court, except in relation to the matter of costs. Employers often send these communications using the threat of costs as intimidation. It is therefore important to distinguish when the threat of costs is a tactic or when there is a real risk attached (generally speaking, costs are rarely ordered in employment tribunal proceedings).
Communications under this provision are only presented to courts/tribunals to aid in determining the allocation of costs for the legal proceedings (the most common outcome in employment tribunal proceedings is that the parties pay their own costs only). This aspect of the ‘without prejudice’ rule allows parties to engage in negotiations and make offers without the concern that their statements will be used against them with regard to liability (liability is essentially who wins or loses).
Navigating Exceptions to the Without Prejudice Rule
Like any rule, the ‘without prejudice’ rule has its exceptions. The rule is not absolute and WP material may be referred to “for a variety of reasons when the justice of the case requires it.”
These exceptions serve to prevent the misuse of the rule in order to shield improper conduct in legal communications. Other typical exceptions to the ‘without prejudice’ rule include:
- Proof of a concluded settlement
- As evidence of fraud, estoppel, misrepresentation or undue influence
- As evidence of perjury, blackmail or other unambiguous impropriety.
- To explain delay.
These exceptions illustrate that while the rule protects settlement communications, it also has limitations to deter misuse.
The Intersection of Without Prejudice and Employment Tribunals
In the context of employment tribunals, the ‘without prejudice’ rule plays an instrumental role. It facilitates candid and transparent discussions between parties, assuring that their statements will not be used against them in the future. This confidentiality fosters an environment conducive to amicably resolving disputes through negotiations.
Statements from ‘without prejudice’ conversations are protected from being used as evidence in employment tribunals, a point worth remembering. This protection ensures the confidentiality of these communications. An employment tribunal oversees ‘without prejudice’ communications by maintaining the rule that prevents such communications from being used as evidence. This approach encourages open and honest discussions focused on resolving disputes without the concern of adverse consequences in litigation.
Legal Nuances: Open vs. Without Prejudice Communications
An understanding of the difference between open and ‘without prejudice’ communications can be essential in navigating legal disputes. Open communications are admissible as evidence at trial, whereas ‘without prejudice’ communications are confidential exchanges between parties aimed at resolving a dispute and are safeguarded from being used as evidence.
Open communications include any form of exchange, such as:
- phone calls
- meeting minutes
- text/WhatsApp messages
These communications are without the protection of ‘without prejudice’ and are generally utilised when parties intend for the correspondence to be openly referenced in court/tribunal.
On the other hand, WP communications involve private discussions aimed at resolving disputes. These communications are selected when parties aim to discuss settlement without compromising their position in the formal dispute.
In such circumstances, these distinctions can significantly influence the outcome of a legal dispute.
This is why it is often important to clearly mark communication “without prejudice” so there is no confusion. However, what attracts without prejudice privilege is what is set out above, there must be a genuine attempt to resolve an existing dispute. This means forgetting the label does not mean it is not protected and adding the label to otherwise open exchanges will not attract the protection either.
Steps to Take After Receiving a Without Prejudice Offer
There is a common misconception that making the first offer is a mistake and shows “weakness.” This is rarely the case and a well-drafted opening offer is an advantage in a negotiation.
How you act when receiving an offer is also very important. Receiving a ‘without prejudice’ offer can be a pivotal point in a dispute. The initial response should be to:
Ensure you understand the terms of the offer. If not (without accepting the offer) seek clarification.
Take advice on the terms of the offer. Seeking guidance from a qualified legal professional will provide valuable insight into the fairness of the offer and the potential so negotiate a better outcome.
Within a reasonable time frame, respond on an without prejudice basis to progress negotiations.
It’s also worth noting that it’s permissible to engage in negotiations about the terms of a ‘without prejudice’ offer. This enables parties to discuss and alter the terms of the offer to reach a mutually beneficial agreement.
Professional Language and Presentation in Without Prejudice Correspondence
Professional language and proper presentation are key to effective ‘without prejudice’ correspondence. Clear statements and respectful language can facilitate understanding and foster constructive discussions. The formatting of the letter or email also carries weight. To establish the intent of the document, it is crucial to mark it clearly with ‘Without Prejudice’ at the beginning.
Adopting a strategic approach is key when selecting content for a ‘without prejudice’ letter. Our ethos is to “diagnose before we prescribe,” meaning we look into the issues in detail and devise a plan before we commence the WP correspondence. We then carry out that plan using an appropriate mixture of open and without prejudice communications, the appropriate mixture varies on a case by case basis.
Calculating Settlement Figures in Without Prejudice Agreements
Determining the appropriate settlement amount in a ‘without prejudice’ negotiation can be a challenging process. Key considerations include:
- the circumstances of the dispute (there are often key practical considerations)
- the type and size of the business and position of the employee involved
- the strength of the legal arguments and evidence
- the claims that would be made at the tribunal
- the fairness of the proposed or actual dismissal
- the size of any previous offers made
There is no universally accepted formula for determining settlement amounts in ‘without prejudice’ negotiations. Therefore, lawyers play a crucial role in determining settlement figures by engaging in open and honest discussions with their clients.
Caution should also be taken when relying on online compensation calculators for this very reason.
Strategies for Successful Without Prejudice Negotiations
Successful WP negotiations require strategic thinking and careful planning. The ‘without prejudice’ tag impacts negotiation strategies by establishing a secure space for parties to exchange offers and terms without the concern of these discussions being used against them as an admission of guilt in court. This should not create a situation where you can say whatever you like. There are various strategies that are tried and tested, but deciding on the most appropriate approach requires skills and experience.
Some essential legal strategies for successful ‘without prejudice’ negotiations include:
- Staying employed. Negotiating when still an employee is often a key factor.
- Ensuring compliance with employment laws and internal policies. All too often, employees try to bolster their case and end up sparking a disciplinary process.
- Understanding your position, then making a well-devised opening offer.
- Not accepting a deal too quickly
- Exercising patience. The best deals take longer to put together.
- Being selective about the topics covered in ‘without prejudice’ communications.
Effective management of communication during ‘without prejudice’ negotiations involves:
- Strategically initiating discussions. We often start formal and work toward more informal exchanges as we get closer to a final resolution.
- Knowing how to apply (or remove) pressure on the other side to have the greatest impact.
- Having a plan at the outset with the ability to pivot if required
- Being able to anticipate
In summary, the WP rule plays a significant role by providing a safe space for parties to engage in candid discussions without fear that the exchanges will be used against them in court/tribunal. This rule encourages open dialogue and fosters the resolution of disputes outside of court proceedings. However, it’s crucial to understand the essentials of ‘without prejudice’ communication, the art of crafting effective ‘without prejudice’ letters, and the nuances between open and ‘without prejudice’ communications. Knowing how without prejudice works is not enough to negotiate a favourable outcome, such as leaving your employment on the best terms possible.
Knowing how to respond to a ‘without prejudice’ offer, employing professional language and presentation in correspondence, calculating settlement figures, and employing successful negotiation strategies can contribute to achieving satisfactory outcomes in ‘without prejudice’ negotiations.
Frequently Asked Questions
What does it mean to say without prejudice?
When something is said to be “without prejudice,” it means that any communications aimed at settling a claim cannot be used as evidence in court.
When should you use without prejudice?
You should use “without prejudice” when writing to someone with whom you are in a dispute, as it indicates that the communication will not be presented in court if the dispute goes to trial.
What is without prejudice in the UK?
In the UK, “without prejudice” means that a communication cannot be used as evidence by the other party in court, typically used during settlement negotiations in a dispute. It ensures that the content will not be produced to a court if the dispute goes to trial.
What is an example of without prejudice?
An example of “without prejudice” is when both parties agree that a letter/email marked as such cannot be admitted in court/tribunal. A common example is when an employer offers an employee a settlement agreement.