Without prejudice is not without risk!

It’s a well-known truism that a little knowledge is a dangerous thing.

For example, I’m often asked by clients to review things that they’ve done for themselves, such as attempts to settle or negotiate with opponents or other parties. This can sometimes include reviewing communications that clients have marked “without prejudice” when they don’t always understand what the implications of that are.

When I query it, they will tell me that they read online that that was the right thing to do if they are negotiating, as it means that they are talking in confidence. Whilst that is true, it’s not always appropriate. There may come a time when they want to show their correspondence to a court (eg as evidence that they tried to settle and were being reasonable) but the without prejudice heading may prevent that. Or it may be that actually the communication isn’t really prejudicial, because nothing has been said in it that puts either side at risk, which can mean that the other side believes that our side doesn’t know what they’re doing and/or it can lead to an expensive argument as to whether the communication could/should be submitted into evidence.

I also often comment on how even lawyers get it wrong. For example, if Judges got it right all the time, we wouldn’t need the Court of Appeal or the Supreme Court.

I’m also known for talking about using a big law firm doesn’t necessarily mean you’re going to get a big service, just a more expensive one.

So, I was quite amused to find that all three of these regular points have been combined in one case.

A partner in a big firm has made a big mistake, and been given a big fine, for heading a letter without prejudice when he shouldn’t have done. In that case, it was found that by heading the letter in that way, he was trying to “improperly attempt to restrict” the other side’s ability to publicise the dispute between the parties. Whilst obviously, this is unlikely to apply to more routine attempts to negotiate deals and settlements, it is still a good example of the consequences of wrongly using legal terms.

If you do think you need some help with negotiations, reduce the risk by getting it checked over by an expert first. Even if that means a cost, it can save you money in the long run.

Kleyman & Co Solicitors. The full-service law firm. Legal advice without restriction.