without prejudice

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A phrase used to enable parties to negotiate settlement of a claim without implying any admission of liability. Letters and communications used in such negotiation and headed “without prejudice” cannot be adduced as evidence in any court action without the consent of both parties. However, they may be relevant when costs are discussed in court: thus the phrase “without prejudice save as to costs” is often added on settlement correspondence. Whether or not a letter or discussion is “without prejudice” and therefore cannot be disclosed to the court depends on whether it was a genuine attempt to settle a dispute, not on whether the words “without prejudice” were written on a letter or spoken in a meeting. The reason such discussions are kept secret from the court is that the courts are keen to encourage settlement of disputes without recourse to the courts, and if settlement discussions could be disclosed it might deter parties from settling disputes.

Subjects: Law — Social Sciences.

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