The term ‘Without Prejudice’ is regularly misunderstood by non-lawyers. Very often, for example, litigants in person will head all of their letters ‘Without Prejudice’, as mentioned by a lawyer on Twitter the other day, and as I have witnessed myself.
The term has also been in the news this last week, in the case BE v DE. I do not propose to discuss that case here in detail (I’m sure it will be covered elsewhere), but I will return to it briefly in a moment.
The term ‘Without Prejudice’ is most often used in correspondence. In the area of family law its main role is in negotiations aimed at settling financial remedy disputes. Any letter so headed is not intended to be seen by the judge (it is sometimes referred to as ‘closed correspondence’, as against ‘open correspondence’, which is not headed ‘Without Prejudice’). Accordingly, the judge will not see any settlement proposals contained in the letter, unless those proposals are accepted by the party on the other side.
The idea behind without prejudice proposals is that, because the judge will not see them, the party putting forward the proposals cannot be held to them. The proposals may therefore be more generous to the other party than any ‘open’ proposals.
The party putting forward the proposals does so without the risk that the other party will try to ‘beat’ their open proposals by showing their ‘without prejudice’ proposals to the court. This was the point in the BE v DE case – the wife had filed a statement with the court which referred to a meeting she had had with the husband. The husband considered that that meeting was ‘without prejudice’ and therefore argued that the wife should withdraw her statement. The court did not accept the husband’s argument, as the judge did not consider that it had been a without prejudice meeting.
Why would a party want to put forward more generous proposals? Well, there are two main reasons. They may consider that their case is not as strong as they are openly admitting or, more likely, they are simply trying to ‘go the extra mile’ to resolve the dispute by agreement, thereby saving the cost of a contested court hearing. Obviously, the courts like matters to be resolved by agreement, hence the systems ‘protects’ without prejudice correspondence.
What happens if the judge does see without prejudice correspondence? Well, they should certainly disregard it when they hear the case, and they may have to excuse themselves and hand the case over to another judge.
I said at the beginning that many litigants in person think it is appropriate to head all of their letters ‘without prejudice’. As will be seen from the above, it is only appropriate if the letter contains some sort of proposal to settle the matter. Most correspondence between parties to a family dispute does not contain any such proposals and there is therefore no need to head it ‘without prejudice’.
It is also not generally considered to be appropriate to head letters relating to children disputes ‘without prejudice’, even if those letters contain proposals for the settlement of the dispute. All discussions regarding arrangements for children should normally be held out in the open.
So if you are a litigant in person, the simple rule should be: do I really need to head this letter ‘Without Prejudice’? More often than not, the answer will be “no”.