Navigating Negotiations: A Guide To The "Without Prejudice" Rule

WHAT IS 'WITHOUT PREJUDICE' AND IT'S APPLICATION IN COMMUNICATION?

The Black's Law Dictionary (9^th Edition) defines 'without prejudice' as "Without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party".

In other words, if a party makes statements during a negotiation phase with another party, it cannot be admitted, prejudiced or used against them with respect to their legal rights when they seek to employ a means of dispute resolution such as litigation or arbitration.

THE COMMON LAW'S APPROACH TO THE USE OF 'WITHOUT PREJUDICE'.

In the case of In Re Daintrey; Ex parte Holt (1893) 2 QBD 116 the court noted that a relying party's communication should be with respect to a dispute or negotiation with another. The words 'without prejudice' therefore did not result in an automatic privilege in all matters.