Jones v Tracey: When Is Correspondence 'Without Prejudice'?

In Jones v Tracey & Ors (Re Costs) [2023] EWHC 2256 (Ch) the High Court held that inter-solicitor correspondence about the possibility of Alternative Dispute Resolution (ADR) was not without prejudice (WP) despite being expressly labelled WP. This enabled the Court to consider the letter in the context of deciding costs liabilities. The judgment usefully illustrates some of the issues parties should bear in mind when seeking to cloak correspondence in WP privilege.

Background and decision

The WP rule prevents correspondence properly labelled "WP", as part of a genuine attempt to settle a dispute, from being disclosed to the court in evidence regarding the substantive dispute or liability for costs. (In contrast, correspondence labelled "without prejudice save as to costs" ordinarily is admissible after judgment regarding liability for costs.)