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You may have come across a letter or an email marked “without prejudice” in the course of your conversation with a colleague or some other party you are in dispute with.It is important to note that that phrase changes everything because it has legal implications.This phrase is a principle in law that accords some legal protection to the content of a document or a correspondence.

The “without prejudice” statements have legal implications in that the statements are afforded some legal protection-they are privileged in nature. When you receive an email or a letter marked “without prejudice”, it means you cannot later use such statements against their maker in court. They are perceived to have been made in a genuine attempt to settle an existing dispute. For that reason, statements made on a ‘without prejudice’ basis will generally not be admissible in court as evidence. This applies to both written and verbal statements made on a “without prejudice” basis.

Nonetheless, not all statements made on a ‘without prejudice’ basis will enjoy that legal protection.  A party seeking statements made on a ‘without prejudice’ basis not to be admitted as evidence must demonstrate that certain elements exist.That is,there must be a dispute at the time the communication is made and ongoing legal proceedings.If no ongoing legal proceedings, the communication must have been in contemplation of litigation.

Another key element is that the communication must attempt to settle a dispute. Mere communications which are not aimed at settling a dispute will not be accorded that legal protection merely because they have been marked “without prejudice”. The content of the document or correspondence is what defines if the document or the correspondence will be afforded protection.

Authored by: Mugo Kamau