‘Without Prejudice’ and ‘Without Prejudice Save as to Costs’ Correspondence

What is ‘Without Prejudice’ (‘WP’) and ‘Without Prejudice Save As to Costs’ (‘WPSATC’) correspondence?

‘Without Prejudice’

Corresponding on the basis of WP with your opponent(s), whether orally or in writing, gives parties the benefit of protection from disclosure of the relevant correspondence in court. It allows parties to negotiate, with a view to reaching a settlement, without prejudicing the parties’ position in admitting any liabilities, that might later be used against them.

This means that, attempts made to reach settlement, would not be seen as parties admitting any faults or liabilities on their part, if these communications are marked as WP. These communications would be protected, whether it is an email, a letter, or copies of notes of a meeting, as long as they relate to settlement discussions. The general rule is that WP correspondence is not admissible in the question of costs (Court of Appeal in Unilever v Proctor & Gamble 2000).

‘Without Prejudice, Save as to Costs’

WPSATC correspondence means that the general rule of WP applies, but there is an exception to the admissibility on the question of costs.

When parties deal with issues on costs, a party may want to refer to the other parties’ conduct / approach during the negotiations. Therefore, if correspondence is marked as WPSATC, when substantive issues of the matter are determined and judgment given, parties may refer to the WPSATC correspondence and decide on costs issues. (Court of Appeal in Gresham Pension Trustees 2016). A failure to mark the correspondence as WPSATC, means that the general rule will apply and the party would be prevented to use such correspondence later on, when determining issues on costs.

Q: What if one party wishes to rely on the WP/WPSATC correspondence, and the other party does not want to?

A: The Without Prejudice privilege can only be waived by the consent of both parties.
The Court of Appeal in Avonwick Holdings v Webinvest 2014

It is important to note that, a correspondence will not be considered as WP/ WPSATC, simply because it is marked as such – so what needs to be present?

    1. Be marked as WP or WPSATC – although there is no express requirement of this, it is good practice to mark the correspondence as such, to show the parties’ intentions and to avoid any doubts;
    2. There is a genuine attempt to resolve a dispute – it is the content, intentions, and substance that count, rather than form.

If you find yourself in a situation where there is a dispute that needs to be dealt with, our team of experienced litigators are here to assist you – not to only craft well-drafted documents in preparation for any legal proceedings, but also to strategically guide you through the procedures and help you to reach commercially-minded decisions. For more information, please do not hesitate to contact us on 020 7632 4300 or make an enquiry online.



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