Without Prejudice Question

[GafBoy]

Hi,

Does “Without Privilege” extends to video content? I know solicitors use it on letters and emails but does it extend to video content eg a sales video I’m sending to a perspective client?

Thanks

 

[Frank the Insurance guy]

Do you mean "Without Prejudice"?

 

[kulture]

I cannot think of any reason why you would want to say without prejudice on a sales communication. At best it shows ignorance and at worst it implies that you don’t stand by your product.

 

[Fagin2021]

I cannot think of any reason why you would want to say without prejudice on a sales communication. At best it shows ignorance and at worst it implies that you don’t stand by your product.

Exactly!

 

[WaveJumper]

I thought the term was generally only used when there was a dispute between parties

 

[Bob Morgan]

It gives the impression that you are ready to 'Lawyer-Up' before you have done any business!

 

[Employment Law Clinic]

when there was a dispute between parties

it is only used when there's a dispute, but more specifically, only when the communication (email, phone call, letter, or even a video) is part of a genuine attempt to resolve said dispute.


Karl LImpert

 

[Fagin2021]

it is only used when there's a dispute, but more specifically, only when the communication (email, phone call, letter, or even a video) is part of a genuine attempt to resolve said dispute.


Karl LImpert

Yes - the intention is that if you make an offer to resolve a dispute then that offer can't be used against you in court, for example, to show liability, or set a level of compensation.

A lot of DIY lawyers slap 'without prejudice' on every communication which is either meaningless or demonstrates to the other party that you have no idea.

 

[Employment Law Clinic]

A lot of DIY lawyers slap 'without prejudice' on every communication which is either meaningless or demonstrates to the other party that you have no idea.

This is so true; and the other measure they take is to put the label on a reply if "without prejudice" wasn't stated in a communication.


All completely unnecessary, as a communication is either "without prejudice" or it's not; it doesn't matter if it has a label, it's the content that's relevant to that question. Sending what could appear to be "open" correspondence (that is actually without prejudice - without the label) does confuse quite a few lawyers, even some very experienced professionals.


Karl Limpert

 

[MikeJ]

Do you mean "Without Prejudice"?

and "prospective"?

 

[2020Lawyer2020]

As said above it is used if you intend to compromise and offer less eg you might send someone a letter saying you owe me £10k and have done the following things wrong and then you send at the same time a without prejudice letter offering to settle for £5k. The latter is kept off the record and is not part of any court proceedings whereas the former would not be.

I think here the issue is you are sending a sale video and are worried about liability for something provided free of charge. You are rightly worried as even gifts can bring legal liability eg if there is a virus in the software or if the free advice is wrong or copied from someone else or if the recipient has not consented to receive it or there is no other lawful basis to send it to them under data protection law.

 

[GafBoy]

As said above it is used if you intend to compromise and offer less eg you might send someone a letter saying you owe me £10k and have done the following things wrong and then you send at the same time a without prejudice letter offering to settle for £5k. The latter is kept off the record and is not part of any court proceedings whereas the former would not be.

I think here the issue is you are sending a sale video and are worried about liability for something provided free of charge. You are rightly worried as even gifts can bring legal liability eg if there is a virus in the software or if the free advice is wrong or copied from someone else or if the recipient has not consented to receive it or there is no other lawful basis to send it to them under data protection law.

Thank You

 

[smallclaimsassistance]

This is so true; and the other measure they take is to put the label on a reply if "without prejudice" wasn't stated in a communication.


All completely unnecessary, as a communication is either "without prejudice" or it's not; it doesn't matter if it has a label, it's the content that's relevant to that question. Sending what could appear to be "open" correspondence (that is actually without prejudice - without the label) does confuse quite a few lawyers, even some very experienced professionals.


Karl Limpert

I think you will find that any competent lawyer knows how, where and when to use the term to their client’s best advantage. The term can also be used for discrete elements of a dispute (ie “without prejudice save as to costs” in a dispute over legal costs). As said above, it is highly necessary, used in the right circumstances, and its omission can give rise to a negligence claim against the lawyers who should have used it. That said, it’s sadly true that there are firms out there who overuse it to compensate for a lack of experience.

@ OP, adding “without prejudice“, even to a letter accompanying a video, won’t provide the protection you seek. From you original brief post it seems that you may have concerns over disseminating the information in your video. The best advice I could give is not to distribute it until you’re confident in, and happy with it.

Dean

 

[Employment Law Clinic]

...it is highly necessary, used in the right circumstances, and its omission can give rise to a negligence claim against the lawyers who should have used it.

Why would you think it's "highly necessary", with an omission giving rise to negligence? If communication - a letter, conversation, whatever form it takes - is aimed at settlement, it's without prejudice, whether it has the label on it or not.


Karl Limpert

 

[smallclaimsassistance]

Please read my response. I said “it is highly necessary, used in the right circumstances”. And yes, its omission can, does, and has, given rise to negligence.

“If communication - a letter, conversation, whatever form it takes - is aimed at settlement, it's without prejudice, whether it has the label on it or not”. That may possibly be true in certain circumstances- I’m not an employment lawyer.

It’s certainly not true in general or injury litigation. The term has a place and a use in PI and general litigation, and its use in settlement negotiations prevents the correspondence from being brought to the attention of the judge at any hearing, interlocutory or final.

@2020Lawyer2020 provides a classic example above, where the term is used in litigation. The same protection is not available where the term is omitted, by virtue of the correspondence just being a negotiation.

 

[Employment Law Clinic]

@2020Lawyer2020 provides a classic example above, where the term is used in litigation. The same protection is not available where the term is omitted, by virtue of the correspondence just being a negotiation.

Dean,

This is my point exactly: the “without prejudice” letter referenced in @2020Lawyer2020 ‘s scenario is (or is not) “without prejudice” whether it has the label on it or not: if it's a negotiation as an effort to resolve a dispute, it's without prejudice.


It’s got nothing to do with employment law, it’s a simple principal of law that in any dispute the parties are expected to try to settle their differences without involvement of the courts, and those efforts, in all communications, are without prejudice.


There is so much case law on this subject, but Lord Griffiths explained the application of the (without prejudice) rule in Rush & Tompkins Ltd v Greater London Council, UKHL 7, (1989), including that the rule does not require the words to be quoted – an omission does not nullify the protection of the without prejudice rule.

The "without prejudice rule" is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish.
…

The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.
…

The application of the rule is not dependent upon the use of the phrase "without prejudice" and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission.

Karl Limpert

 

[MOIC]

I think you will find that any competent lawyer knows how, where and when to use the term to their client’s best advantage. The term can also be used for discrete elements of a dispute (ie “without prejudice save as to costs” in a dispute over legal costs). As said above, it is highly necessary, used in the right circumstances, and its omission can give rise to a negligence claim against the lawyers who should have used it. That said, it’s sadly true that there are firms out there who overuse it to compensate for a lack of experience.

Agree with the above.

It is highly necessary used in the right circumstances.

 

[smallclaimsassistance]

This is my point exactly: the “without prejudice” letter referenced in @2020Lawyer2020 ‘s scenario is (or is not) “without prejudice” whether it has the label on it or not: if it's a negotiation as an effort to resolve a dispute, it's without prejudice.


It’s got nothing to do with employment law, it’s a simple principal of law that in any dispute the parties are expected to try to settle their differences without involvement of the courts, and those efforts, in all communications, are without prejudice.


There is so much case law on this subject, but Lord Griffiths explained the application of the (without prejudice) rule in Rush & Tompkins Ltd v Greater London Council, UKHL 7, (1989), including that the rule does not require the words to be quoted – an omission does not nullify the protection of the without prejudice rule.



Karl Limpert

Karl, I have neither the time nor the inclination to trade precedents over this. I am perfectly well aware of the principle of privilege in written communication. I have 4 years in law school, a professional legal qualification, 32 years in the legal industry, and 11 of those as a business owner, running first a large firm of PI solicitors, and now my own legal business. I have dealt with litigation at all levels, and despite the 30+ yr old precedent you have quoted, I can tell you that judges DO treat WP and open correspondence in EXACTLY the manner both I, and @2020Lawyer2020 (he was explaining that the phrase is used, not that it isn’t) outlined above.

Over those 30+ years, I have seen mistakes made with the phrase, where privilege was lost and the letter utilised at trial against the writer’s wishes, and conversely, situations where a writer changed their minds, wanted to use a WP letter in a trial bundle, and couldn’t. I have however seen far more situations where the term provided the protection it intended, and, specifically, numerous occasions where written offers (and therefore as you say “negotiations”) were used against the offeree, because they were not labelled WP.

Your comment that “if it’s a negotiation as an effort to resolve a dispute, it’s without prejudice”, is, in practice, wrong. Litigation and in particular personal injury litigation is to a greater extent negotiation. Even junior solicitors working in that field understand the importance of using the phrase, and not doing so. I’m afraid your reason for eschewing the phrase, in a high level damages negotiation would provide you with no protection whatsoever.

You are entitled to your view. But your view does not change my career, nor does it change the personal injury/litigation industry.

I’ve spent far too long on this already, but the POINT of this thread is to explain to the OP the use of the phrase and its application to his situation. The phrase provides very real protection, in the right circumstances, but is not useful to the OP in his situation.

 

[Employment Law Clinic]

You are entitled to your view. But your view does not change my career, nor does it change the personal injury/litigation industry.

...

I’ve spent far too long on this already

Dean, you entered the debate saying I’m wrong, correcting my post above. Surely you can thus have the courtesy to explain & demonstrate why I’m wrong to rely on a case from 33.5 years ago, rather than quit the debate after offering nothing more than hearsay. (The original point of the thread has perhaps been addressed, but your corrections to my post are unqualified, and it would be polite to explain the basis on which you corrected me.)

My “view” is to simply reiterate the views of the House of Lords, the supreme court at the time of that judgment.

If cases go stale, no longer become relevant (a new idea to me), I could cite Lord Neuberger of Abbotsbury when the House of Lords on 11th March 2009, handed down its judgment in Ofulue & Anor v Bossert (2009), UKHL 16 (all my emphasis, below & above).

In the present case, it is indisputable that the Letter was written with a view to settling the earlier proceedings, and that the Ofulues can have been in no doubt but that the without prejudice rule was intended to apply to it.

That case actually cites Sir John Romilly MR in an even older case than 33.5 years (actually 170 years old!), but still relevant today: Jones v Foxall (1852) 15 Beav 388, wherein the Master of the Rolls explained how the whole practice of converting offers of compromise into admissions of acts prejudicial to the person making them should not be permitted (see penultimate paragraph of the judgment); for all I can make out, perhaps this judgment was the genesis of the practice to apply the label without prejudice to communications.

There are of course occasions when something said to be “without prejudice” is found in fact not to be protected: in 2006 the House of Lords, in Bradford and Bingley Plc v Rashid, HL 37 (12th July 2006), found that a letter purporting to be “without prejudice” was not protected at all, as it was an admission of liability, rather than intended to negotiate and compromise a disputed liability.

And digressing briefly, this opens a different issue, argues against another point you made, Dean:

The term has a place and a use in PI and general litigation, and its use in settlement negotiations prevents the correspondence from being brought to the attention of the judge at any hearing, interlocutory or final.

If it is disputed whether a communication is or is not without prejudice, it has to go before a judge to get a ruling on that matter; having a label “without prejudice” does not alter anything, if the contents – the substance – doesn’t strictly meet the without prejudice rules.

Put simply, it’s the “substance over the label” that determines if a communication is genuinely without prejudice, and that can only be decided if the communication is put before a judge - a label doesn't prevent that happening without exception, although of course if something is ruled to be "without prejudice", then the judge in a final hearing would not be expected to see, hear, or perhaps even know of such communication.


A more recent case of whether a letter marked “without prejudice” was considered in the Court of First Instance in Hong Kong (still following UK law) in Poben Consultants Limited and others v. The Clearwater Bay Golf & Country Club HCMP 2332/2016, a case which cites further case law to determine whether the without prejudice rule does or does not apply.


If my calculations are correct, Rush & Tompkins was handed down around the time you were still in law school, so is it just possible that the tutors didn’t pick-up on this simple explanation of how the without prejudice rule applies?

Given your impressive CV above, surely you can cite some case law to demonstrate why the House of Lords in Rush & Tompkins Ltd v Greater London Council, UKHL 7, (1989) is not actually correct – perhaps it’s been corrected since by the Supreme Court, or a lower court has qualified what appear to be clear & simple comments by Lord Griffiths, but the last I read, all courts are still following the principals set out in Rush & Tompkins & the many other cases I’ve cited, and that feels more reliable than hearsay.


Karl Limpert