Without prejudice
Disputes & Litigation

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.