without prejudice

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 or communication would be received by a reasonable recipient. Marking letters 'without prejudice' is not conclusive that they will be considered without prejudice documents by an English 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 or falls within one of the other limited exceptions. Such documents 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.

Usage: The letter was marked 'without prejudice' and not admissible for the purposes of proving the facts alleged within it.

Related Words: litigation; negotiation; inter partes.