By Christian Hill, NALP member
Through my involvement in commercial and contractual disputes over recent years, one issue I have repeatedly encountered is the misunderstanding of the term ‘Without Prejudice.’ It is one of the most frequently used phrases in dispute correspondence, yet in my experience it is also one of the most misunderstood.
A common assumption appears to be that placing the words “Without Prejudice” at the top of an email or letter automatically prevents that communication from ever being seen by a court. I have seen parties mark entire chains of correspondence as “Without Prejudice,” seemingly believing that this creates an automatic shield around everything that follows. Unfortunately, the position is not that simple.
One of the recurring issues I have encountered is that parties often focus on the heading rather than the purpose of the communication itself. The protection exists to encourage genuine settlement discussions. It allows parties to negotiate openly and explore possible resolutions without fear that those discussions will later be used against them. However, the protection generally arises from the substance of the communication rather than the label attached to it.
I have seen emails marked “Without Prejudice” that contain no settlement proposal whatsoever. Instead, they contain factual accounts, allegations, legal arguments, explanations of events, or attempts to persuade the other party that a particular position is correct. While the sender may genuinely believe the correspondence is protected, there is a significant difference between discussing a dispute and attempting to settle one.
This incorrect use of ‘without prejudice’ isn’t limited just to businesses or individuals acting without legal advice. During my involvement in disputes, I have occasionally seen professional advisers mark routine correspondence as “Without Prejudice.” In some instances, the communication simply acknowledged receipt of documents, confirmed attachments received, or dealt with administrative matters. There may be reasons for doing so within the wider context of ongoing negotiations, but such examples demonstrate how easily the term can become attached to correspondence that is not, on its face, a settlement proposal. In turn, this can contribute to the misconception that the label itself creates protection regardless of the actual content of the communication.
In my experience, there is tendency for parties to overuse the term. Once a dispute becomes contentious, it is not uncommon to see every email, letter, and attachment marked “Without Prejudice,” regardless of its content. While this may be done out of caution, it can create confusion. If every communication carries the same heading, it becomes increasingly difficult to distinguish between genuine settlement discussions and ordinary correspondence.
I have also noticed that some parties use the term almost as a form of legal armour, believing it prevents scrutiny of the contents. This can lead to a false sense of security. A document does not become protected simply because a particular phrase appears at the top of the page. If that were the case, any party could effectively remove evidence from consideration merely by applying a label. Unsurprisingly, the position is far more nuanced.
This distinction can become important when a dispute escalates. Parties sometimes make statements, admissions, or disclosures believing they are safely protected behind a “Without Prejudice” heading. They may later discover that the protection they assumed existed is not as extensive as they believed. In some cases, information that was thought to be confidential negotiation material may instead become relevant evidence.
From an evidence perspective, the consequences of misunderstanding the principle can be significant. A party may disclose information they would otherwise have approached more carefully. They may make concessions, admissions, or statements that later create difficulties when positions change or become more refined. In some situations, correspondence that was assumed to be untouchable becomes the subject of arguments about admissibility, creating additional complexity and expense for everyone involved.
Perhaps the clearest indication that the phrase itself does not create the protection is that a genuine settlement discussion can still be protected even if the words “Without Prejudice” never appear anywhere in the correspondence. In theory, two parties could negotiate a settlement without ever using the term, and the court would still be concerned with the substance of those discussions. This illustrates an important point: the protection arises from the nature of the communication, not simply the heading placed above it.
One of the lessons I have taken from observing disputes is that parties should think carefully before assuming a communication is protected. The more important question is not what heading appears at the top of the page, but why the communication is being sent in the first place. Is it a genuine attempt to negotiate a settlement, or is it simply setting out facts, evidence, arguments, or demands? The answer to that question is often far more important than the wording contained in the header.
From my observations, the phrase remains a valuable and important tool when used correctly. However, it should not be viewed as a magic formula capable of protecting every email, letter, or document. In dispute resolution, substance almost always matters more than form. What ultimately determines whether a communication is protected is not necessarily what it is called, but what it is actually intended to achieve.
Summary and Practical Advice
The central point discussed throughout this article is that the words “Without Prejudice” are not a shortcut to protection. The phrase has an important role in dispute resolution, but its effectiveness depends upon the nature and purpose of the communication itself.
Ultimately, the critical question is not whether the words “Without Prejudice” appear at the top of a document, but whether the communication forms part of a genuine settlement discussion. The protection arises from the substance of the communication, not the label attached to it.
A common mistake is to focus on the heading rather than the substance of what is being said. This can create a false sense of security and lead to misunderstandings about whether a communication is genuinely protected.
Another practical point to bear in mind is that misunderstandings surrounding “Without Prejudice” can influence how parties communicate. Where a party incorrectly assumes that correspondence is automatically protected simply because it carries the heading, they may provide explanations, admissions, or levels of detail that they would otherwise have approached more cautiously. Understanding the limits of the protection is therefore important, not only when drafting your own correspondence, but also when assessing communications received from others.
Where “Without Prejudice” status is raised during a telephone call, meeting, or other verbal discussion, it is important to make a contemporaneous note recording the date and time of the discussion, who was present, who raised the point, the general purpose of the discussion, and whether the status was accepted or challenged.
ABOUT THE AUTHOR
Christian Hill is member of NALP and Group Managing Director of Intelligent Protection International Ltd. With extensive experience in international contracts, dispute resolution, and compliance in the security industry, he bridges the gap between business leadership and legal practice.
