Without Prejudice

Without Prejudice

Postby huntingross » Wed May 06, 2009 7:01 pm

I was just going to add a little 'spout' to a reply to a thread, about Without Prejudice.

I had mentioned on here, somewhere, that correspondance, once written Without Prejudice applies to all subsequent correspondance, but my 'spout' tonight was going to be in the context of court proceedings.

Without Prejudice documents can not be relied upon in Court because it means what it says WITHOUT PREJUDICE...it is a tool for negotiation.

I would suggest careful use of the "tool"....it is not the magic potion to protect you....it protects all parties once invoked.

Check the Wiki description :

In many common law jurisdictions such as the United States, the U.K., Ireland, Canada, Australia, New Zealand and Singapore, the term "without prejudice" is also used in the course of negotiations to indicate that a particular conversation or letter is not to be tendered as evidence in court; it can be considered a form of privilege.[2] This usage flows from the primary meaning: concessions and representations made for purpose of settlement are simply being mooted for that purpose, and are not meant to actually concede those points in litigation.

Such correspondences must be made in the course of negotiations and must be a genuine attempt to settle a dispute between the parties. It may not be used as a façade to conceal facts or evidence from the court and as such a document marked "without prejudice" that does not actually contain any offer of settlement can be submitted should the matter proceed to court. Courts may also decide to exclude from evidence communications not marked "without prejudice" that do contain offers of settlement.[3][4]

The term "without prejudice save as to costs" is a modification to the above and refers to a communication that cannot be exhibited in court until the end of the trial when the court awards costs to the successful party. This is also referred to as the Calderbank formula, from Calderbank v Calderbank (1976),[2] and exists because UK courts have held that "without prejudice" includes for the purposes of costs, as in Court of Appeal, in Walker v Wilshire (1889):

Letters or conversations written or declared to be "without prejudice" cannot be taken into consideration in determining whether there is a good cause for depriving a successful litigant of costs.
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Re: Without Prejudice

Postby Veronica » Mon May 11, 2009 10:50 pm

Sure ... they can't demand our letters as evidence in court ... but we can submit them as evidence we have tried to negotiate ... without giving up any rights.

But we can't demand subsequent letters from them in court ... but they can submit them as evidence to support their role as Plaintiffs (not that that would help them, of course)
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Re: Without Prejudice

Postby huntingross » Tue May 12, 2009 12:02 am

If you can't rely on the content in Court, the volume just says "you both wrote alot....to no effect"....not really a victory for either side.

And it's not one sided as you describe it...."not that it would help them" applies to both them and us.
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Re: Without Prejudice

Postby huntingross » Tue May 12, 2009 12:03 pm

The most of what we write seems to be trying to nail something on them or extract info from them. Protecting this info "without prejudice" seems in the most part pointless.

We don't loose our rights by asking questions, speaking the truth or stating the truth....however, anyone gets into hot water when they make wild assertions backed on no evidence, and then you're wide open to counter claims. So using W.P. doesn't protect your rights unless you're looking to step outside of them, but then it wouldn't protect you anyway...its not like Parliamentary Priviledge.

It does protect you if you're trying to negotiate a resolve without conceding ground as you work to get there.

I don't think our letters and claims could be considered to be trying to resolve an issue between two parties....

We need to consider when or if we use it....If you want to rely on their response (if needs be in Court) you probably shouldn't use it.
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Without Prejudice

Postby The Freeman-on-the-Land known as Michael » Wed Oct 21, 2009 9:27 pm

With all due respect to Veronica, who has locked her thread on this subject, I felt compelled to start a new one, just to clarify that the Without Prejudice priviledge can be used very effectively during ongoing discussions to settle a matter privately, and that when applied correctly, it does not preclude the admission of documents into court when the other party is in dishonour of an agreement, whether express or implied (tacit).

What is the meaning of 'without prejudice'?

Where negotiations are said to be 'without prejudice', it means that nothing that is said or done is admissible in evidence in any subsequent trial should the negotiations fail. The object of the exercise is to encourage parties to make genuine attempts to settle disputes, without fear of their discussions - and in particular their potential concessions - being subsequently disclosed in court.

There are two circumstances in which 'without prejudice' statements may be admissible in later court proceedings:

where protection is waived with the express or implied consent of both parties

where a settlement is reached following 'without prejudice' negotiations, but one of the parties subsequently fails to honour the terms of the settlement, and the matter therefore ends back in court.


http://www.wrighthassall.co.uk/resources/faqs/faq1318.aspx

In Halsbury's Laws of England:

"Letters written and oral communications made during a dispute between parties which are written or made for the purpose of settling the dispute, and which are expressed or otherwise proved to have been made without prejudice cannot generally be admitted in evidence. The rule does not apply to communications which have a purpose other than settlement of the dispute."

http://duhaime.org/LegalDictionary/W/WithoutPrejudice.aspx

A letter is considered 'without prejudice' when it is made with a bona fide intention of being a negotiating document in a dispute. In doing so, the intention of the author is considered along with how the letter would be received by a reasonable recipient. Marking letters 'without prejudice' is not conclusive that they will be considered 'without prejudice' documents by a court, but that fact is taken into account when determining whether they should be considered as such.

When a document is properly characterised as being 'without prejudice', neither party is permitted to refer to it in court unless it is to evidence an agreement previously concluded by the parties. Such documents therefore may contain admissions and other material that would otherwise be harmful to a party to a dispute, and these documents may not be taken into consideration by the court.

Strictly speaking, such materials are subject to 'without prejudice privilege', which is an inter partes privilege. There is no obligation on either party to waive the privilege.

http://www.gillhams.com/dictionary/203.cfm

“Without Prejudice” correspondence remains “Privileged” even after a compromise has been reached and is generally inadmissible in any subsequent litigation on the same subject matter whether between the same or different parties. However, where the negotiations are successful and the “Without Prejudice” correspondence constitutes a binding contract the correspondence may be produced to prove that such a contract has been entered into (if, say, one party does not comply with the terms of the settlement, and the other wishes to enforce it). (Ref: Rush & Tompkins v Greater London Council (Court of Appeal) 21 December 1987).

http://www.alway-associates.co.uk/legal-update/article.asp?id=55

Therefore, while I agree with V in the sense that when we know we want to be able to rely on a document in court it should not be included, I would contend that it is not the case that Freemen should "never' write Without Prejudice on their documents. The priviledge can also be waived unilaterally if the other party has not exercised it, and I have first hand knowledge of one man recently being asked to strike out the words before the county court manager would accept his affidavit.

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Re: Without Prejudice

Postby huntingross » Wed Oct 21, 2009 9:35 pm

Humble effort to convey the term "Without Prejudice":

viewtopic.php?f=69&t=738&hilit=+without+prejudice#p5813
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Re: Without Prejudice

Postby The Freeman-on-the-Land known as Michael » Wed Oct 21, 2009 9:40 pm

huntingross wrote:Humble effort to convey the term "Without Prejudice":

viewtopic.php?f=69&t=738&hilit=+without+prejudice#p5813

Apologies Mark. If I had known about your thread I would have posted it there. Please feel free to move the post if you think it would be better placed there.
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Re: Without Prejudice

Postby The Freeman-on-the-Land known as Michael » Wed Oct 21, 2009 9:47 pm

huntingross wrote:It does protect you if you're trying to negotiate a resolve without conceding ground as you work to get there.

I don't think our letters and claims could be considered to be trying to resolve an issue between two parties....

We need to consider when or if we use it....If you want to rely on their response (if needs be in Court) you probably shouldn't use it.

I completely agree with you on the first and third points, but I also believe that the vast majority of letters and notices I have read on thinkfree and fmotl forums are in fact attempting to settle an issue between the parties.

Just my thoughts, for what they are worth.

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Re: Without Prejudice

Postby huntingross » Wed Oct 21, 2009 10:05 pm

It was perhaps a bit of a sweeping statement
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Re: Without Prejudice

Postby huntingross » Tue Nov 10, 2009 7:23 pm

bump

the question has arisen again.....just putting this back at the top for a while.
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