Shhhhhhhhhhhhhhhhhhhhh!

Although perhaps that should be shhhhhhhhhh***t!

If you’ve ever done any negotiation, you should be familiar with how without prejudice negotiations work.

It’s what your opening comment or sentence should be when you speak to or write to the other side if you want to be able to say something that you wouldn’t want repeated to anyone else, such as a Judge.

I often talk about how there are two occasions when WP can become sh*t.

One is when someone marks something WP when they might want it to be shown to the Judge. For example, you might want the Judge to know that you tried very hard to resolve matters without the need for court proceedings, and you made a very sensible offer, without any admission of liability. Once the case is over, and you’re arguing about costs, you might be able to tell the Judge what happened, and you may be able to have your offer taken into account when deciding on what costs are awarded for or against you, but you may have obtained more benefit if the Judge had known what you offered during the course of the trial. Your barrister may have been deprived of some very good material for cross-examination.

The other is when you mark something WP when it wasn’t really WP. Sometimes people think that simply by marking a letter as being sent WP means that it can’t be shown to anyone, whereas the reality is that if there is nothing prejudicial in the letter, it can be argued that the letter should be disclosed. People try to hide behind WP when they shouldn’t, and that can increase the costs and damage your credibility.

However, there is also a third mistake people make with WP, which exclusively arises in employment matters. If you are having a discussion with an employee about a possible exit strategy, and you want to do it “off the record” there is nothing to stop you, but in certain circumstances, the existence and content of the conversation(s) can be disclosed to the Tribunal as evidence that the employer was not acting in good faith.

If you’re having any kind of negotiations with an opponent, make sure that you’re using WP at the right time for the right reasons.

If you’re negotiating with an employee, make sure you’re acting in good faith.

In either scenario, don’t automatically assume that what you say will be protected, as there are sometimes circumstances when this might not work.

If in doubt, take legal advice, as getting it wrong could cost you a lot more in the long run!

Kleyman & Co Solicitors. The full-service law firm. Good advice whether on or off the record.