“Without Prejudice” - The Legal Time Out

While Freemasons have secret handshakes, lawyers have the “without prejudice” communication (“WPC”).  Sad I know.

WPCs help lawyers to negotiate settlements openly without worrying that their words will sneakily be repeated in court in the dispute or another.  It is a legal “time out”.

The courts wish to encourage frank communications between parties to negotiate a settlement of a dispute without fear that admissions in such negotiations will be placed before a court as evidence against them. Therefore, communications made in a genuine attempt to negotiate a settlement are treated as "without prejudice" i.e. off the record. "Genuine" means that point scoring, threats, and assorted other abuse are not covered.

In business, the use of the term "without prejudice" is right up there with "deliverables", "sustainable", and "awesome". It signals that you are getting legal, without the tedium and expense of involving a lawyer. It offers the romance of secret communications combined with the opportunity to say something cutting and clever in an off the record sort of way, in case it turns out not to be so clever after all.

The problem with this approach is that the rule is not that straight forward. If you get it wrong you may have made a statement against your interests in a legal world which is obsessed with not admitting anything without careful consideration in case it is wrong, or the goal posts shift.

One judge identified a superstitious obsession, that the expression "Without Prejudice" is possessed of virtually magical qualities, and that anything done or said under its supposed aegis is everlastingly hidden from the prying eyes of a Court." If you have such an obsession, I suggest that you get out more.

Freemasons may have their critics, but at least once they establish a secret code they stick to it, unlike lawyers who need to pick at things. 

But sometimes it is not convenient for something to be secret and courts will apply common sense to admit it.  This is either a refreshing change or a pain in the neck depending on which side you are on.

For instance, you failed to settle using WPCs and then an application was made by your opponent to throw your case out due to your delay.   By telling the court of the WPC you are not catching the other side out by releasing secret communications but simply not allowing them to take "liberties".  Here, the WPC is being revealed to prove a fact independent of the issues in dispute i.e. that you have been trying to settle.

Despite repeated assaults over the centuries, courts have said it is public policy to allow lawyers to have secret communications that stay secret. Therefore, the courts have applied the WPC rule generously and widely, refusing to introduce procedural or linguistic technicalities to weed out the parts that deserve protection from the parts that do not. 


This article is also available as a Podcast. If you would prefer to listen to this and other legal content please go to the "Law" Podcast : 

Click here for legal books and eBooks by Paul Brennan. 





We pride ourselves on delivering sound, practical advice with an understanding of every client’s personal needs. 


Popular posts from this blog

The most popular podcasts

Choosing the right lawyer

Coping with the Wicked Step Mom in your life