Applying "without prejudice" to communcation retrospectively.

[TheBestHippogriff]

Hi all,

If a solicitor starts heading letters \"without prejudice\" and mentioning it numerous times in the letter and claiming that all previous discussions have also been based on that \"without prejudice\" premise, can they get away with that? By \'that\' I mean unilaterally and retrospectively applying \"without prejudice\" to all previous communication (over a period of months) that was never marked \"without prejudice\" or even mentioned?

Thanks, Hippo

[ABerrant]

All correspondence which falls within the strict criteria of "Without Prejudice" (documents that relate to all negotiations genuinely aimed at a settlement between parties) are automatically deemed "Without Prejudice" i.e. the phrase does not have to appear on that correspondence for it to be in effect. It makes sense to clearly mark documents as such but subsequent and previous letters in the same chain of correspondence need not be so marked.

Conversely, all correspondence which is plastered with the phrase but does not meet the criteria is not "Without Prejudice"; use of the phrase in this manner is just so much wasted ink.

[TheBestHippogriff]

If you have been in discussions with someone since, say, July 2009 and those discussions are where both parties are trying to solve a disagreement but, ultimately, failing so far... then, all of a sudden - in September - the solicitor then starts using "without prejudice" because, he says, that all of this prior information - from July - cannot be used in court if that is the place we both end up because we can't agree... well, is that right?

Some of the stuff we have been discussing would be perfect to back up my case if we ever reached court - for example, the other side has admiited liability in an email. Previously I never said that anything was confidential or couldn't be used in court - and neither did they - but now that it looks like something might not get resolved without a visit to court, it seems they want to try and apply "without prejudice" to all previous communication... effectively muzzling me.

Is that all perfectly acceptable, or something a bit sneaky and dubious? Can I just say I don't agree with all the previous information exchanged as being "without prejudice"?

Ta, Hippo

[ABerrant]

Provided, as you have written, the discussions are an attempt at settlement of a dispute then they automatically enjoy the status of "Without Prejudice" no matter how long the negotiation has previously taken place, even if the caveat has never been explicitly expressed.

A more comprehensive description here...
http://www.andrewjackson.co.uk/legal-resources/legal-fact-files/how-to-use-without-prejudice-to-protect-your-interests/

[themas]

Looking at this as a layman I tend to agree with you that it seems underhand and dubious. In my view, if you do end up in Court, you should use the information anyway and let the judge decide whether it is admissible or not. I do not see why you should now have to treat all earlier communications as being "without prejudice" when - from what you say - it seems they came from the solicitors who should have been sufficiently aware to make this clear at the outset. If the earlier exchanges were direct with the other party then it may be different, but if they have done something as fundamental as making an admission of liability in writing it should be (in my view) totally outrageous if this could not be used in Court.

As I say, let the judge decide whether it is admissible.