Originally Posted: June 7, 2013 - http://batchelorstammlaw.com/2013/06/without-extreme-prejudice/
Settling your claim without (extreme) Prejudice:
Settlement privilege and without prejudice communications
As a guy with a law degree I get asked a lot of questions. One that seems to keep coming up is, “What does the “Without Prejudice” mean on the top of letters and emails?”
It means that the writer wants to communicate with you off the record in the hopes of settling your claim.
Without Prejudice is legal shorthand for settlement privilege. Lawyers and people who fancy themselves legally trained write it on the top of documents to let other people know that they don’t want those things showing up in court. It is a signal from the writer to you that if you try to bring it to court the writer will ask the judge to exclude it on the basis of settlement privilege.
So what is settlement privilege?
Settlement Privilege
Settlement privilege is a rule of evidence that allows courts to exclude documents or other communications made by people who are trying to negotiate a settlement. The point is to let people talk freely so that there is a better chance of making an agreement and staying out of court. Who would be willing to acknowledge any weaknesses or make low offers if they knew a judge would be holding it against them later?
That’s probably enough information to get you by, but to be safe I’ll break it down a bit further to make sure I don’t leave you with the wrong impression. First let me say a word about evidence and privilege generally, and then I’ll give you a few more details about settlement privilege.
What’s the deal with evidence?
If you end up in court then odds are your trying to convince a judge of something. Judges know the law, but they don’t know the facts of your case. To figure out the facts of your case, judges rely on evidence. Evidence can either be stuff witnesses say in court, or it can be documents, or cool stuff like videotapes and murder weapons.
The evidence you can bring to court to prove your case is limited by all kinds of legal rules called the Law of Evidence. Somewhere in the compendious volumes covering what is allowed into court, and what isn’t there is a section called privilege.
What is Privilege?
If evidence is privileged it means the court won’t consider it, unless the holder of that privilege decides to waive privilege and let it in. In a way you could say that someone has the privilege of keeping this evidence out of court.
The most talked about privilege is solicitor client privilege. Solicitor client privilege prevents the court from hearing what a client said to his or her lawyer when getting legal advice. The holder of this privilege is the client, meaning that if the client wants the court to hear about those discussions the client can waive that privilege and allow the evidence to come in. Getting back to Settlement Privilege.
What is Settlement Privilege?
As I said earlier, settlement privilege is meant to help people negotiate openly. It protects all communications that are made as part of settlement negotiations. The privilege is held by all parties to the negotiation. That means that the evidence won’t be allowed to come in to court unless both parties agree to waive the settlement privilege.
Of course like all things in the law there are exceptions. The big exception you should know about is for Costs.
What are Costs?
When people go to court, other than small claims court, the loser usually has to pay the winner a portion of his or her legal fees. We call these fees costs. That means if you lose at trial, in addition to paying whatever the award is you will also have to pay costs.
What do Costs have to do with Settlement Privilege?
In most courts there are rules to encourage settlement. These rules may have a costs penalty for people who turn down reasonable settlement offers. An example is in some BC Supreme Court cases where if you turn down an offer and the judge doesn’t give you an award equal to or greater than that offer then you have to pay double costs for all the legal work done after the offer was refused.
As you’ve probably guessed the court would need evidence on when an offer was made and for how much in order to enforce a rule like that. This means that settlement privilege will normally not apply to determining the amount of costs after the trial.
Sometimes you might see “Without Prejudice (except as to costs)”. This is just being extra clear about this particular rule. The fact is that most without prejudice documents could be legitimately brought into court to determine costs.
Bottom Line
You got something that says “Without Prejudice” on the top. Can you use it in court? Probably not. But remember those words aren’t a magical incantation. If the document has nothing to do with settling the case then you might still be able to get it in. See a lawyer.
You sent something out with “Without Prejudice” on the top. Can someone else use it in court? If it was about settling the claim then probably not. It was about something else, then yes it can probably be used as evidence.
You sent out something about settling your claim, but didn’t put “Without Prejudice” on the top. Can it be used in court? Probably not. Settlement privilege should apply whether or not you used the magic words. Of course it’s simpler for everyone if you use them.
You are worried about what evidence can show up after the trial is done to determine costs (ie. The portion of legal fees the loser has to pay). Settlement privilege normally doesn’t apply to a hearing on costs. The rules are specifically designed to look at offers to settle, so odds are that everything will come in.
I hope that helped clear up the hidden meaning of the words “without prejudice” and remember, when in doubt see a lawyer to sort it out.
Article authored by: Cody Walker, Law Student, CD, AA, JD
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