"WITHOUT PREJUDICE" – Are Your Communications Protected?

Commercial and legal correspondence is often headed "Without Prejudice" in an effort to confer privilege from production on the correspondence. However, there is no magic in the words "Without Prejudice" alone, with the effect that your communications may not be privileged at all. How can you ensure that communications ostensibly made under the cover of privilege don’t end up being used against you in Court?

Both at common law and pursuant to s 131 of the Evidence Act, the "Without Prejudice" privilege extends protection to communications (whether written by the client or their solicitors) in connection with the attempts of the parties or one of them to negotiate a settlement of existing proceedings or a legal dispute.