About the "without prejudice" rule

Background and Introduction to legal rules

Societies down the ages have tried to ensure that judges hearing disputes are unbiased and reach their conclusions fairly in accordance with the relevant legal rules.

The extent to which this desirable objective is met depends partly on the personal qualities of the judges and partly on other factors.

A judge in a civil case needs  to have the intellectual capability of correctly assessing the evidence presented and determining which party is most likely to be correct about the disputed facts. They also need to be able to ascertain the relevant legal rules and apply them to the facts found, taking account of all facts established which are legally relevant and not being swayed by any other matters which the legal rules say are irrelevant.

As well as the head there is also the heart. A judge must have the motivation to always carry out their legal duty of deciding cases according to their honest assessment of the evidence and in accordance with the legal rules, and not allowing any personal feelings - for example of instinctive like or dislike of the parties before them - to sway their judgment.

So selecting suitable men and women to be judges is very important but no human being is perfect and the attributes of the legal system, and the content of the legal rules, are also important.

Under contract law the legal rules governing whether a legal contract has been created are fairly clear and settled and it is intellectually relatively easy for a judge to decide such a question and to be sure that their own prejudices and biases (and all human beings have prejudices and biases of one kind or another) have not influenced the result. 

If a judge is asked to decide whether a decision of a government minister is within the legal powers given to that minister by Parliament it should also be intellectually possible to do that, whatever private political (small p) views the judge may hold because the judge is not being asked to decide whether the decision was a good one or otherwise but only whether it was within the powers set out in the words of the Act of Parliament. 

Again if the law is such that the judge is called upon to decide whether the decision of a government minister is irrational in the sense of using a hammer to crack a nut, it should not be difficult for the judge to make that decision with confidence that whatever political (small p) opinions the judge may have, will not have swayed them. On the other hand if it were the legal rule that government decisions could be declared unlawful if they were merely disproportionate - if, to continue the metaphor, the legal rule was that for a decision to be lawful it had to be shown that the nutcraker used to crack the nut was of the right size and strength (not significantly more and not significantly less) it might be more difficult for a judge when making that kind to decision to be sure that they were not being  influenced by their own political (small p) opinions on the relative value and importance of matters which are the subject of political debate.  

So the content of the legal rules can be important in not requiring judges to make the kinds of decisions which border on political (small p) judgment and which may make it intellectually difficult for the judge to be sure that they are not being swayed by personal opinion .  

As well as the rules of the law itself, certain features of the legal system help to protect judges from situations which might cause them to be unsure whether they are being subconsciously influenced by legally irrelevant matters and, equally importantly, also protect judges from the suspicions others might have  that they might be subconsciously influenced. 

A key and obvious rule in the legal system is that judges do not hear cases where the judge knows any of the parties, or any of the witnesses. It is human nature to instinctively like or dislike some people but if it is only a superficial emotion formed when seeing someone giving evidence in a courtroom it is much easier to put out of mind when evaluating the evidence than if the judge actually knows the person. 

The "without prejudice" rule is another rule of the legal system designed to ensure that judges are not subconsciously influenced by legally irrelevant matters. The "without prejudice" rule means that if a party makes an offer to settle litigation and that offer is not accepted, so that the litigation continues, the judge should not see or be told about the offer. The rationale is that if the judge knew of the offer, particularly if it was a substantial offer (such as an offer of half the sum in dispute), that would indicate to the judge that the party making the offer had been advised by their lawyers that their case was not strong. Logically that knowledge should not influence the judge - it is the judge's evaluation of the evidence and the legal arguments put forward which matters ultimately and whether or not any lawyer - a lawyer who has not yet seen the evidence of witnesses tested at a final hearing - evaluates matters differently is neither here nor there.  Nevertheless it is thought that judges can be subconsciously influenced by such knowledge and, equally importantly, litigants are concerned that judges might be subconsciously influenced which means that if the "without prejudice" rule did not exist litigants might be put off making reasonable offers with the result that sensible settlements, which might be in the interests of both parties, would happen less often. It would also increase calls on the public purse as more cases proceeding all the way to a final hearing would lead to a need to appoint more judges.

The "without prejudice" rule

The default position is that any communications which are genuinely aimed at settlement of a legal dispute are "without prejudice" and inadmissible (and therefore should not be included in an eBundle) and any replies to such letters are inadmissible also. (Of course if the terms of a settlement are definitely agreed and binding then the relevant "without prejudice" correspondence is admissible to prove the settlement agreement itself but then of course, there will be no final hearing and so no eBundle). 

It is not uncommon, therefore, for there to be two distinct chains of letters/emails between parties, one chain consisting of "open" emails/letters which can be included in an eBundle if necessary, and the other chain consisting of "without prejudice" emails or letters which cannot be included in a eBundle. The "open" correspondence might be the ordinary correspondence which occurs in litigation - such as a letter before action (setting out  a party's legal case and inviting the other party to acknowledge and act accordingly to avoid the necessity of formal legal proceedings) and subsequent replies. The simultaneous "without prejudice" correspondence might commence with an offer not to commence formal legal proceedings if the other side makes some acceptable concession which does not go as far as acknowledging the full legal rights asserted in the open correspondence. It is important that such chains are kept separate because in the event that there is no settlement the party which wrote the "open" letter before action will want to be able to show it to the tribunal to demonstrate that they did not issue proceedings prematurely (which they would not be able to do if it referred to "without prejudice" correspondence and thereby itself became classified as "without prejudice"). There have been very exceptional situations where the tribunals in the past have admitted in evidence a "without prejudice" communication because of something else it contained - for example if it contained some outrageous threat - but these exceptions are rare so it is important for a party to ensure that anything it might want to rely on later is stated in open correspondence.  

There are a few situations where someone might want to make an "open" settlement offer which is not "without prejudice" and so can be included in the eBundle. For example suppose a party has a good legal case that their neighbour has no right of way at all over their land but they are mainly concerned about vehicular access and suppose that depriving the neighbour of access on foot would be a serious hardship for the neighbour. A judge is not going to like  depriving the neighbour of the access on foot. Of course it is the duty of the judge to assess the evidence impartially and apply the law dispassionately but given that one of the main justifications for the "without prejudice" rule is concern about the judge being subconsciously influenced against the party making the offer if the offer is revealed,  there may be equal concern, in a case such as this, about subconscious influence of the judge against the party making the offer if the offer is not revealed. So in a case like this a party may wish to make an open offer of access on foot only, so as to demonstrate that the only reason why formal proceedings are being pursued is that the neighbour is insisting on vehicular access.

Because the default position is that any communications which are genuinely aimed at settlement of a legal dispute are "without prejudice" and inadmissible and cannot be included in the eBundle, a party making an open offer will wish to underline the fact that it is an open offer typically by putting the words "OPEN OFFER" at the start of the letter or email. But the words "open offer" can sometimes be ambiguous - they can mean an offer made openly - i.e. not "without prejudice" - or they could mean an offer (of either kind) which is open for acceptance and has not yet been withdrawn. So the meaning intended  is sometimes spelt out by adding words such as "This is an open offer to settle... which may be referred to at the hearing...".

In theory, because the default position is that any communications which are genuinely aimed at settlement of a legal dispute are "without prejudice", it is not necessary to start such communications with the words WITHOUT PREJUDICE, but in practice lawyers nearly always do, just to make sure. It is only communications aimed at settlement of a "legal" dispute which are "without prejudice". A practical offer by a landowner to address some complaint by a neighbour would not be "without prejudice" if there is as yet no litigation and none is contemplated by either party. But the exact point in time when a complaint or disagreement becomes a "legal" dispute, and one or both parties start to contemplate the possibility of litigation, may not be easy to determine, hence the general practice of heading "without prejudice" offers with those actual words.

If a communication is WITHOUT PREJUDICE EXCEPT AS TO COSTS that means that it is "without prejudice" as far as the final hearing is concerned (and so cannot be included in the eBundle) but once the judge, after the hearing, has decided which party wins and what order to make,  and notified the parties, the communication can then be referred to when arguments about who should be ordered to pay costs are made.

"Without prejudice except as to costs" offers used to be called Calderbank Letters or Calderbank Offers and you sometimes still find this terminology being used. Sometimes the expression "Without prejudice save as to costs" is used which means the same thing. Part 36 of the Civil Procedure Rules 1998 sets out a detailed scheme which can be used to make and respond to settlement offers made in cases in the High Court and County Court (or, if litigation has not yet commenced, in disputes which could end up in either of those courts) and a Part 36 offer is also regarded as "without prejudice except as to costs".

The expressions "Without prejudice except as to costs", Part 36 Offer, etc. are specifically legal phrases which have a specific legal meaning. But the simple words "without prejudice" standing alone may be ordinary English words and may not always mean "without prejudice" in the lawyer's sense. For example an employer might write to an employee saying "During the current transport strike we will generally allow you to start work not later than 10.00 am but this is without prejudice to our right to require you to attend at your contractual start time of 09.00 am where pressure of work makes this necessary." In this example the employer is obviously not making an offer to settle a legal dispute but merely using the ordinary English expression "without prejudice" to emphasise and make clear the limited and qualified nature of a unilateral concession.

Likewise sometimes non-lawyers will head what is essentially a letter before action with the words "Without Prejudice" not to indicate that they are making a settlement offer but rather to indicate that they might eventually take things further - i.e. litigation - if the letter does not produce the desired results. So such a letter, if it does not contain a settlement offer, might not be "without prejudice" in the lawyer's sense even though it is headed "without prejudice".  It is complications such as these which can lead to disputes between the parties about what documents can be included in the eBundle.

Keeping the different correspondence threads separate

If you tap the Reply button to reply to an email, your reply email will normally have automatically included in it the text of the email you reply to, and the Subject line will, unless you alter it, contain the same subject text as the email you are replying to, with the addition of the prefix RE. If each each party uses the Reply button then you can end up with a long email "thread" in which the latest message at the top has, below it, all the other messages in the thread in reverse chronological order. Correspondence by letter can also consist of threads  in that each letter will, by convention, identify the letter it is replying to by commencing e.g. "Thank you for your letter of 22 June 2021." A similar convention can be used with email - instead of tapping the Reply button you can create a New Email and commence it with "Thank you for your email of 22 June 2021 (at 10.15).". 

Whether physical threads are being used (e.g. where the text of the original email is automatically included in the reply) or whether the threads are only "logical" (with each item in the correspondence explicitly identifying or implicitly alluding to the item of correspondence to which it is a reply). It is important that "open" threads, "without prejudice except as to costs" threads, and "without prejudice" threads should not be mixed up. It is possible for for a "without prejudice except as to costs" thread to refer to an "open" thread (but not vice versa) but a "without prejudice except as to costs" email/letter should not be worded as a reply to an "open" email/letter. Similarly a "without prejudice" thread can refer to a "without prejudice except as to costs"  thread or an "open" thread but should not be a direct reply to either.

If someone were to refer to a "without prejudice" email/letter in an email/letter headed "without prejudice except as to costs" then it is likely that the  email/letter headed "without prejudice except as to costs" would be considered to be "without prejudice" and so could not be referred to when, eventually, arguments over who should be ordered to pay costs are addressed to the tribunal. This would be so even if the "without prejudice except as to costs" email/letter was not actually a direct reply to the "without prejudice" email/letter.

If someone were to refer to a "without prejudice except as to costs" email/letter with an email/letter headed "without prejudice" then it is likely that the  email/letter headed "without prejudice" would still be considered to be "without prejudice". The "without prejudice" letter could not be referred to when, eventually, arguments over who should be ordered to pay costs are addressed to the tribunal, but the "without prejudice except as to costs" email/letter itself could still be used. 

The same would generally apply if the "without prejudice"  email/letter not only referred to the "without prejudice except as to costs" email/letter but was actually a direct reply to it, but replying to a "without prejudice except as to costs" email/letter with a "without prejudice"  email/letter is bad practice because it can lead to mistakes and confusion. In particular if the person who originally sent the  "without prejudice except as to costs" email/letter replied to the "without prejudice" letter with a second  "without prejudice except as to costs" letter that second  "without prejudice except as to costs" letter would be treated as "without prejudice" and so (contrary to the sender's intention) could not be referred to when, eventually, arguments over who should be ordered to pay costs are addressed to the tribunal.

In order to try to avoid such situations occurring accidentally it is good practice to not use the email Reply button for any "without prejudice except as to costs" or "without prejudice" emails and to store such emails in separate sub-folders (separate from ordinary emails and separate from  each other).       

Disputes about whether a document is "without prejudice" or not.

If one party wishes to have included in the eBundle a document which they claim is not "without prejudice" and the other party objects because they say it is "without prejudice" then at some point a judge will have to decide whether the document is or is not "without prejudice".  This is a sensitive area because, as explained above, the whole idea of the "without prejudice" rule is that "without prejudice" documents should not be seen and taken into account by the judge and if the judge looks at the document and decides that it is indeed "without prejudice" it may require some mental gymnastics for the judge to then put it out of their mind. On the other hand without reading the document how can a judge fairly decide whether it is "without prejudice" or not? Sometimes a party is tempted to insist on a judge ruling on a  document which clearly is without any doubt "without prejudice" in order to try to influence the judicial mind against the other party. Such temptations should be firmly resisted. In such a case the judge might order that the hearing should be before a different judge at a later date and may order the party advancing the obviously hopeless argument that the document is not "without prejudice" to pay the extra legal costs caused by the late postponement of the hearing. 

The formal directions given by the tribunal might say that a document, whose "without prejudice" status is disputed, and which one party wishes to be included in the eBundle, should not initially be included in the eBundle and the issue should be highlighted at the earliest opportunity so that further directions can be given. Sometimes the formal directions will say that a document, whose "without prejudice" status is disputed should be included in the eBundle in which case  words such as *** the Applicant objects to this document*** should be added to the document description so that is appears in the index, and the first page of the eBundle should be a note stating what documents are objected to and a brief explanation why.            

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This page was lasted updated in October 2023. Disclaimer