Without prejudice privilege

The privilege attached to communications or documents (oral or written) that prevents them from being used against the party involved. The admissions must be in the course of negotiations for the compromise of legal claims on the express or implied condition that they are not to be used in evidence if the matter subsequently comes to litigation. The words ‘without prejudice’ are often used to mark communications to which such privilege is intended to attach.

It is up to the Court to determine whether or not a communication or document attracts without prejudice privilege.

The term ‘without prejudice is often misused, and the privilege will not be attracted in circumstances of purely commercial negotiation, such as correspondence unrelated to settling a dispute (although this may still attract legal professional privilege), letters of demand which do not include concessions or discounts, and correspondence finalising the terms of an agreement.