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Ever wondered exactly what the without prejudice rule is?

23 September 2019

In a nutshell, the with prejudice (WP) rule will generally prevent statements made in a genuine attempt to settle an existing dispute, from being put before the court as evidence of admissions against the interest of the party that made them.

The rationale is that settlement discussions will be facilitated if parties can speak freely (‘off the record’) and secure in the knowledge that what they have said may not be used against them should the settlement discussions fail. The WP rule only applies to negotiations which take place in a genuine attempt to settle an existing dispute.

It is important to note, simply labelling a document WP will not bring it within the ambit of WP privilege if it is not, in substance, a communication made in a genuine attempt to settle an existing dispute. The WP rule can therefore be challenged if the substance of the correspondence has nothing to do with the dispute.

The situation is different where statements are "without prejudice save as to costs", in which case they are not admissible in the substantive dispute but they are admissible on questions of costs.

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