Without Prejudice Communications

The ‘Without Prejudice’ maxim is designed to encourage parties to express themselves freely and without inhibition, and the wording is often used as a heading to letters and emails to this effect.

The principles of the legal maxim “without prejudice” were clearly set out by Hoffmann J. in the case Forster v. Friedland (November 10, 1992, Court of Appeal transcript 1052), where Hoffmann L.J. said:

“What is required is that negotiations must be genuinely aimed at settlement, that is, the avoidance of litigation… The communication will be protected if there is an intention to speak without prejudice followed by a genuine proposal or genuine negotiations aimed at avoiding litigation.”

Provided that the communication has this wording clearly visible on the face of it and the above criterion is met, then the communication will be covered by the maxim.

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