A brief foray into the correspondence files of many real estate professionals (including lawyers) reveals correspondence that is boldly marked as “without prejudice” or “counter-contractual” or with other similar titles. Unfortunately, their almost random use suggests that many people are not sure about their effects. LawNow`s Tip of the Month property looks at the most commonly used phrases and reminds us what they actually mean. The privilege associated with the phrase “without prejudice” can be an important tool to help parties resolve their disputes outside the judicial system, as parties can make concessions without fear that their words will later be held against them in court. However, as described above, the mere use of the term “without prejudice” outside of a comparative negotiation context can lead to serious complications, so it is crucial to use the term in its applicable context. In Bradford & Bingley Plc v Rashid  1WLR 2066, Lord Brown stated: “The communications in question were made explicitly without prejudice and, in general, such communications would have the privilege, even without public justification, of encouraging the parties to negotiate and settle their dispute amicably.” However, Lord Mance disagreed, distinguishing between a situation where there was a real argument and the sentence appeared unprejudiced, and a context where there is no dispute and that sometimes “the phrase can be used without thinking or superfluously, in which case it can simply be ignored. Either party is not free to extend the scope of the injury rule or the privileges it grants with respect to admissibility or disclosure. » “. as a general rule, without prejudice in a subsequent dispute concerning the same subject-matter, the rule renders inadmissible proof of confessions made in the context of a genuine attempt at an agreement. It goes without saying that even the admission to reach an agreement with another party in the same dispute is inadmissible, whether or not a settlement has been reached with that party. Although the above definition may seem simple, the mere use of the term “without prejudice” does not necessarily mean that communication is privileged. Whether the communication is covered depends on whether the communication is used exclusively to negotiate a settlement.
In fact, if the context clearly indicates that communication must be “bias-free, it is not absolutely necessary to include the slogan, although, for the sake of clarity, it is better to use it than not. Where can I put the words “without prejudice” in a document or email? This has the same effect as the offer “without prejudice”, however, the author reserves the right to disclose the offer to the court (or to the arbitrator or expert) if it deals with the issue of costs after the formal settlement of a dispute, even if this particular offer is not accepted. This type of offer is traditionally used in rental valuations (the Calderbank offer). It is increasingly common in legal proceedings where the “primary objective” of the new Code of Civil Procedure obliges the parties to take into account costs at all stages […].