Without prejudice’ means that documents and communications relating to attempts to settle are to be excluded from being shared with anyone other than the parties in dispute and their representatives. They are not to be put before a Court or third parties save in very specific circumstances (to establish the costs on a case for instance, and this only once the merits on the main claim are assessed and judged upon). The use of without prejudice communications is particularly helpful when parties try to negotiate or resolve a matter, as they may concede points otherwise not agreed in pleadings or mediation.

However, the Court of Appeal in [Berkeley Square Holdings Ltd & others v Lancer Property Asset Management Ltd & others [2021] EWCA Civ 551, 15 April 2021] upheld the decision to allow ‘without prejudice’ statements made in a previous mediation to be admissible. The defendants were able to rely on the statements as an exception to the ‘without prejudice’ rule as they constituted evidence that an agreement should be set aside on the ground of misrepresentation, fraud or undue influence.

This changes the manner in which such documents are treated in relation to confidentiality and should be carefully considered in the future when deciding whether mediation is the correct medium for dispute resolution. So be warned: not all that is without prejudice will remain as such!

Contact ASV Law info@asvlaw.com now for more information and we will be happy to assist you.