{"id":7297,"date":"2022-07-22T14:25:44","date_gmt":"2022-07-22T13:25:44","guid":{"rendered":"https:\/\/www.taxpolicy.org.uk\/?p=7297"},"modified":"2022-09-27T16:42:44","modified_gmt":"2022-09-27T15:42:44","slug":"wp","status":"publish","type":"post","link":"https:\/\/heacham.neidles.com\/2022\/07\/22\/wp\/","title":{"rendered":"Why publish “without prejudice” and “confidential” correspondence?"},"content":{"rendered":"\n

This is a slightly wordy explanation that I’ve written primarily for lawyers who are curious why an experienced lawyer would publish “without prejudice” correspondence. The main post is here<\/a>.<\/p>\n\n\n\n

The short answer is: because it wasn’t really “without prejudice” or “confidential”. If I write you a letter, and say the letter is an elephant, that doesn’t make it an elephant.<\/p>\n\n\n

Without prejudice?<\/h2>\n\n\n

We generally want lawyers to negotiate to reach settlements, rather than taking everything to a time-consuming and expensive court hearing. “Without prejudice” is a longstanding rule designed to facilitate that. The Civil Procedure Rules summarise it as:<\/p>\n\n\n\n

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In other words, if I’m suing someone for \u00a3100m, and offer in a “without prejudice” letter to settle for \u00a31 then, if we later get to court, the defendant can’t point to my \u00a31 offer and say it suggests I don’t believe in my own case. The court will generally refuse to accept my letter as evidence. It is probably also improper for the defendant’s lawyer to publish my letter – it’s certainly bad manners.<\/p>\n\n\n\n

The Osborne Clarke email goes further than “bad manners”, and says:<\/p>\n\n\n

“It is up to you whether you respond to this email but you are not entitled to <\/i>publish it or refer to it other than for the purposes of seeking legal advice. That would be a serious matter <\/i>as you know.”<\/i><\/p>\n\n\n

This is poppycock – indeed it’s more than poppycock, it’s an improper attempt to intimidate someone without the rest of the world finding out about it.<\/p>\n\n\n\n

But you can’t just slap “without prejudice” on any old letter – there has to be a genuine attempt to settle a dispute. As Lord Griffiths said in Rush & Tomkins v. GLC<\/em>:<\/p>\n\n\n

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 \u2026 The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.<\/p>\n\n\n

That’s the key: there must be a dispute, and the correspondence must be – “genuinely aimed at settlement”. So actually my \u00a31 offer above might not be \u201cwithout prejudice\u201d, because the recipient could well claim it wasn\u2019t \u201cgenuine\u201d1<\/a><\/sup>This is a very smart point that I\u2019d missed, but was picked up by a litigator – thank you Chris!<\/span>. <\/p>\n\n\n\n

There are several reasons we can be confident the \u201cwithout prejudice\u201d doctrine doesn\u2019t apply to this letter:<\/p>\n\n\n\n\n\n\n\t\t\n\t\t\t\t