Written by “Without prejudice” is not a magic phrase and it is not a licence to publish settlement correspondence. It is a rule about the admissibility of genuine settlement negotiations. Mishandling it can create costs risk, privilege disputes, confidentiality problems and, in serious cases, procedural sanctions.
Publication snapshot
- “Without prejudice” protection usually applies to genuine settlement negotiations, whether oral or written.
- The label helps, but it is not decisive. The court looks at substance and context.
- Wrongly publishing or relying on protected material can create costs, confidentiality and procedural risk.
- There are recognised exceptions, but litigants often overestimate when those exceptions apply.
What “without prejudice” means
The without prejudice rule protects genuine attempts to settle a dispute from being used as evidence on the merits if settlement fails. Its purpose is practical: parties should be able to negotiate openly without fearing that every concession, offer or exploratory proposal will later be used against them at trial.
The rule is associated with authorities including Rush & Tompkins Ltd v Greater London Council and Unilever plc v The Procter & Gamble Co. The essential point is that the protection depends on the character of the communication, not just the heading placed on it.
The label helps, but the substance matters
A letter marked “without prejudice” is not protected if it is not part of a genuine settlement attempt. Conversely, a genuine settlement discussion may be protected even if the words “without prejudice” were not used.
For litigants in person, the safest working definition is this: if a communication is genuinely trying to compromise a dispute, it may be protected from being deployed in court on the merits. But that does not mean it can be copied, published, quoted online, sent to third parties, or used tactically without risk.
It is also important to distinguish ordinary “without prejudice” material from “without prejudice save as to costs”. The latter is generally protected on the merits, but may be shown to the court at the appropriate costs stage, after the court has decided the substantive issues or when costs are being considered.
What it does not do
The without prejudice rule is often misunderstood. It is primarily an evidential rule about admissibility. It is not the same thing as confidentiality, legal professional privilege, data protection, settlement privilege, a court order, or a private non-disclosure agreement.
Without prejudice usually concerns
- whether settlement communications can be used as evidence;
- whether admissions made in negotiations can be deployed at trial;
- whether negotiations should remain outside the merits dispute;
- whether the material can be considered at a later costs stage;
- whether a recognised exception applies.
It does not automatically answer
- whether publication to the world is lawful;
- whether a confidentiality agreement has been breached;
- whether personal data has been misused;
- whether a court order or undertaking has been breached;
- whether the material is safe to post online.
That distinction matters. A party may be unable to rely on a communication at trial because it is without prejudice, but still face separate consequences if they publish it in breach of confidence, breach a settlement term, identify private information, or breach a court order.
Equally, a party cannot make an otherwise open accusation protected simply by writing “without prejudice” at the top. If the communication is not a genuine settlement communication, the label may do little or nothing.
Disclosure risks
The consequences of disclosing without prejudice material depend on timing, purpose, context and any related obligation of confidence. The risk is not always the same before proceedings, during proceedings and after settlement.
Before proceedings
Disclosure may damage negotiations, create confidentiality arguments, harden positions, increase costs risk and make settlement harder.
During proceedings
Improper reliance on protected material may be objected to, excluded, criticised in costs, or treated as part of wider procedural misconduct.
At the costs stage
“Without prejudice save as to costs” material may become relevant when the court considers costs, but ordinary without prejudice material remains sensitive.
After settlement
Disclosure may breach settlement terms, confidentiality clauses, undertakings or data obligations, even if the merits dispute has ended.
Do not assume disclosure destroys the protection
One party’s misuse or publication of protected material does not necessarily make it admissible on the merits. Without prejudice protection may require waiver by both parties, unless a recognised exception applies. The safer approach is to treat disclosure as a risk event, not as a tactical shortcut.
Contempt of court should not be treated as the routine consequence of disclosing without prejudice correspondence. It may become relevant if there is a breach of a court order, undertaking, reporting restriction, confidentiality order or other procedural obligation. In ordinary cases, the more immediate risks are admissibility objections, costs consequences, confidentiality disputes and loss of trust in settlement discussions.
Strike-out is also not automatic. A court may impose serious sanctions for abusive conduct, deliberate breach of orders or misuse of process, but a party should not assume that every mishandling of without prejudice material will lead to a case being struck out. The response will depend on the seriousness and effect of the conduct.
Exceptions to the rule
The without prejudice rule is strong, but not absolute. The leading authorities recognise situations where the court may need to look at the communications despite the usual protection.
In Unilever, the Court of Appeal identified recognised categories where without prejudice material may become admissible. These include issues such as whether a settlement agreement was concluded, whether an agreement should be set aside for misrepresentation, fraud or undue influence, and cases involving unambiguous impropriety.
Oceanbulk Shipping & Trading SA v TMT Asia Ltd recognised an interpretation exception. Where without prejudice negotiations result in a settlement agreement, communications forming part of the factual matrix may in some circumstances be considered to interpret that agreement.
Possible exception categories
- proving whether a settlement was reached;
- interpreting a settlement agreement;
- setting aside an agreement for misrepresentation, fraud or undue influence;
- showing unambiguous impropriety;
- dealing with costs where the communication was “save as to costs”.
Common mistakes
- assuming unfairness is enough;
- treating every alleged lie as “unambiguous impropriety”;
- publishing first and seeking justification later;
- confusing “without prejudice” with confidentiality;
- using protected correspondence as leverage online.
The exception problem
The exceptions are narrow and fact-sensitive. A litigant who believes an exception applies should get written legal advice before quoting, exhibiting, forwarding or publishing the material.
Berkeley Square Holdings Ltd v Lancer Property Asset Management Ltd is an important modern Court of Appeal decision on the relationship between the without prejudice rule and the interpretation exception. The practical lesson is not that protected material can now be used freely. It is that the court will police the boundaries carefully when settlement communications are said to be needed for a recognised purpose.
ADR and costs
Without prejudice communications often arise in negotiation, mediation and other non-court dispute resolution. Those processes are now a central feature of civil litigation in England and Wales.
The Practice Direction on Pre-Action Conduct and Protocols expects parties to consider negotiation or another form of ADR before proceedings are commenced. It also states that silence in response to an invitation to participate in ADR, or refusal to participate, may be considered unreasonable and may lead to costs consequences.
The Court of Appeal’s decision in Churchill v Merthyr Tydfil County Borough Council confirms that the court may, in an appropriate case, stay proceedings or order parties to engage in non-court dispute resolution, provided the order is proportionate and does not impair the essence of the right to a fair trial.
ADR pressure does not remove without prejudice protection
The court may encourage, require or take account of dispute resolution steps. That does not mean the substance of settlement negotiations can automatically be used on the merits. Costs, admissibility and confidentiality remain separate questions.
For litigants in person, the practical point is to separate the channels. Open correspondence can set out procedural positions and proposals. Without prejudice correspondence can explore settlement. Without prejudice save as to costs correspondence can protect a costs position. Mixing those categories casually can create avoidable disputes.
Decision flow
Before sharing, quoting or relying on without prejudice material, use a staged check. This is a practical risk filter, not a substitute for legal advice.
Was it a genuine settlement communication?
If not, the label may not protect it. If yes, continue with caution.
Is it ordinary WP or WP save as to costs?
Costs-stage material should still not be deployed on the merits.
Why do you want to use it?
Merits, costs, settlement enforcement, interpretation and public disclosure raise different risks.
Is there a recognised exception?
Do not rely on an exception without checking the authorities and the facts.
Are there separate confidentiality or court-order risks?
Settlement terms, undertakings, privacy, data protection and court orders may matter independently.
Best practice
Good handling of without prejudice correspondence is mostly disciplined administration. Keep settlement communications separate, label them clearly, avoid forwarding them casually, and do not publish them online.
When sending settlement communications
- use the correct heading;
- make the settlement purpose clear;
- avoid threats, abuse or unsupported allegations;
- separate open procedural points from settlement offers;
- confirm whether any offer is “save as to costs”.
When receiving them
- keep the material private;
- do not put it into an open bundle without advice;
- do not quote it in open correspondence casually;
- check whether any exception genuinely applies;
- take advice before disclosure to third parties.
If a settlement is reached, record the terms carefully. Consider whether the agreement needs to deal with costs, confidentiality, payment dates, dismissal or discontinuance of proceedings, enforcement, tax, non-disparagement, undertakings and default consequences.
If a dispute later arises about the settlement agreement itself, do not assume that all without prejudice material becomes open. The admissibility question must be tied to the specific issue before the court.
Key takeaways
The without prejudice rule exists to protect settlement negotiations and promote dispute resolution. It does not exist to create a tactical weapon, a secrecy label for ordinary threats, or permission to publish protected correspondence.
The safest discipline is simple: keep settlement communications separate, label them clearly, do not disclose them casually, and get written legal advice before relying on an exception. In civil litigation, mishandling without prejudice material can create a second dispute before the first one has been resolved.
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