Does "Without Prejudice" protect you in court?

It is a common misconception that using the words "without prejudice" will mean that communications made can not be used against you later in Court.  That is not necessarily the case.

Quite often parties use these words in correspondence or discussions aimed at attempting to settle a dispute.

However it is not the use of the words "without prejudice" which make the communication one that may not be used later in Court.  Discussions which are had in the course of a genuine negotiation to settle an existing dispute are privileged and can not be used as evidence in Court unless all parties to the negotiations agree to waive the privilege.

The actual use of the words "without prejudice" is neither necessary nor sufficient to attract the privilege.  Whether communications are covered by privilege depends upon the party's intentions and the nature of the communications.  There must be settlement negotiations for the privilege to operate and the privilege only applies to statements or offers which constitute admissions.

A mere reference to settlement negotiations is not enough.  The privilege only applies to words or conduct made in the course, or in connections with, settlement negotiations.

That said, objective facts which may be ascertained during settlement discussions may not necessarily be protected by the without prejudice privilege.

For example, in the High Court case of Field v CMR for Railways NSW, the plaintiff claimed damages for being thrown from a train while it was still moving.

During a without prejudice meeting that the plaintiff had with a doctor, the plaintiff admitted to stepping out of the train while it was still moving rather than being thrown as was alleged.  This statement of fact whilst made by the plaintiff during a without prejudice meeting was admitted by the Court into evidence.

Therefore it is important to remember that use of the words "without prejudice" will not necessarily result in the unavailability of facts or admissions made from evidence which may ultimately be considered by the Court in a final determination of any dispute.

For more information about without prejudice communication, contact one of our Dispute Resolution & Litigation lawyers.

Author: Mary Nemeth