The limits of without prejudice: misuse of legal privilege

The limits of ‘without prejudice': when legal privilege no longer applies!

How an essential legal tool is increasingly misused to suppress criticism and avoid scrutiny!

In legal and business correspondence, the phrase “without prejudice” carries a specific and important meaning. It refers to a form of legal privilege designed to encourage open negotiation between parties in dispute. When used appropriately, it protects the content of settlement discussions from being admitted in court or disclosed publicly. This protection allows parties to speak frankly, make offers or even concede weaknesses in their case without fear that such admissions will later be used against them.

However, in recent years, this powerful safeguard has been misapplied and, in some cases, deliberately misused. Individuals and corporate entities, often through legal representatives, are attaching the phrase “without prejudice” to communications that have nothing to do with settlement, no connection to active litigation and no intention of negotiating in good faith. Increasingly, this label is used to issue legal threats, make unsupported demands or attempt to intimidate journalists and investigators into silence.

This raises an essential legal and ethical question: When does “without prejudice” truly apply and when can it be safely ignored?

What ‘without prejudice' really means?

Under UK law, the “without prejudice” rule is a principle of evidential privilege. It is not a statutory rule but a common law doctrine developed through decades of case law. Its core purpose is to protect settlement discussions between disputing parties, so that any attempts to resolve matters amicably are not later used against them in litigation.

In simple terms, if Party A makes an offer to settle a dispute with Party B and the conversation is marked “without prejudice”, neither party can later refer to that offer in court as evidence of liability or wrongdoing. The rationale is clear: courts want to encourage dispute resolution without punishing candour.

The criteria for privilege to apply

Contrary to popular belief, it is not enough for a party to simply type “WITHOUT PREJUDICE” at the top of an email or letter. For the privilege to be recognised, the following conditions must usually be met:

1. There must be a genuine dispute between the parties
2. The communication must be a genuine attempt to settle that dispute
3. It must be part of a negotiation process, whether in anticipation of litigation or during it
4. The substance, not the form, of the communication is what determines protection

The landmark case of Rush & Tompkins Ltd v GLC [1989] AC 1280 remains a leading authority, confirming that courts will look at the context and intention, not just the label.

If these conditions are not satisfied, then the communication may not attract protection, regardless of the phrase used.

Misuse of the label: what it is not for!

In practice, the phrase is increasingly used in contexts where no dispute exists, no settlement is being proposed and no litigation is on the horizon. Some lawyers include it as a matter of routine. Others use it tactically, hoping to:

• Prevent publication of information
• Intimidate journalists or media outlets
• Shield aggressive or threatening demands from public scrutiny
• Create an artificial barrier against public disclosure

This misuse of the privilege is not merely a technical error. It has real implications for transparency, press freedom and legal accountability. When parties use “without prejudice” to try to suppress factual reporting or critical inquiry, they risk undermining the legal system’s balance between confidentiality and openness.

Journalistic inquiry is not a settlement negotiation!

When a journalist sends a request for comment or clarification to a company or individual, that communication is not a legal dispute. It is not a negotiation. It is not part of a litigation process. It is a standard journalistic practice, grounded in ethical reporting and public interest.

If a company responds to such an inquiry with a “without prejudice” warning, it is likely that this designation has no legal effect. The response is not a settlement offer. It is not part of a negotiation. It is simply a response to a request for comment. In such cases, the courts may take the view that the communication was never privileged in the first place.

This position is reinforced by case law. In Unilever Plc v Procter & Gamble Co [2000] 1 WLR 2436, Lord Justice Robert Walker explained that “not all settlement negotiations are protected and not all documents marked without prejudice are privileged.”

When do courts allow ‘without prejudice' communications to be admitted?

Even where the label is valid, courts have recognised a number of exceptions to the without prejudice rule. These include:

• Misrepresentation, fraud or undue influence: If the communication contains false or misleading statements that affect a party’s position
• Threats or improper conduct: Where the correspondence is used to harass, intimidate or pressure the other party
• Explanation of delay or misconduct: Where the communication is relevant to procedural fairness or the conduct of a party

In these cases, the court may “pierce the veil” of privilege and admit the content. The privilege is not absolute.

The role of transparency and public interest

From a media law perspective, there is a broader issue at stake. When legal correspondence is used to obstruct reporting or prevent scrutiny, the balance must be restored in favour of public interest journalism. Courts have consistently upheld the principle that truthful, accurate and fair reporting on matters of public concern is protected speech, even if it is critical or damaging.

If a party attempts to avoid scrutiny by labelling all communications “without prejudice”, they are not asserting a legitimate legal right. They are trying to impose a shield against accountability. In many cases, this tactic may backfire, particularly if it becomes part of a pattern of conduct aimed at silencing criticism.

Practical steps for journalists and investigators

So what can investigative journalists, researchers and publishers do when faced with a “without prejudice” letter that appears to be misused?

1. Assess the context: Is there an actual dispute? Are you in negotiations? Is litigation underway? If not, the privilege likely does not apply.
2. Review the substance: Is the communication offering a concession or settlement? Or is it making threats or denials?
3. Check for factual claims: If the other party is denying allegations, correcting facts or asserting public positions, those points may be paraphrased or summarised.
4. Do not publish full letters: Even if the label is misapplied, publishing an entire letter verbatim may still carry risk. Instead, summarise the key points, use indirect speech and avoid showing signatures or direct quotes.
5. Publish your own correspondence: You are free to publish your own emails, requests for comment and your response letters. These are not privileged.
6. Seek clarification: If in doubt, ask the sender to confirm whether the correspondence is privileged and on what basis. Their refusal to clarify may support your argument that it was a misuse of the label.

A word of caution

This article should not be read as an invitation to disregard the “without prejudice” rule entirely. In genuine legal disputes, especially where settlement is being discussed, the privilege exists for good reason. Parties must be able to negotiate in confidence, without fear of later disclosure.

However, when the label is applied to intimidate, silence or conceal non-negotiated threats, it loses its legal force. The courts have made it clear that the mere use of the words does not make a document privileged. What matters is the intention and context of the communication.

Our Final Thoughts and Conclusion

“Without prejudice” is a powerful legal concept. But like all legal tools, it must be used correctly. In the wrong hands, it can become a mechanism for censorship and abuse. As media organisations, lawyers and regulators navigate an increasingly complex environment of legal risk and public accountability, it is essential to distinguish between legitimate privilege and tactical misuse.

Journalists, researchers and editors should continue to ask difficult questions, to seek responses in good faith and to publish matters of public interest responsibly. Where threats are used to suppress reporting, those attempts should be recorded and, where appropriate, exposed.

Transparency does not yield to convenience and legal privilege cannot be used as a cloak for silence.

FAQs

What does “without prejudice” mean in law?
It is a legal privilege protecting genuine settlement discussions from being used as evidence in court.

Does writing “without prejudice” automatically grant protection?
No. Courts look at the substance and context, not just the label.

When does “without prejudice” apply?
It applies only when there is a real dispute, and the communication is a genuine attempt to settle it.

Can companies use “without prejudice” to silence journalists?
No. Journalistic inquiries are not settlement negotiations and are not covered by this privilege.

What case law defines the limits of “without prejudice”?
Key cases include Rush & Tompkins Ltd v GLC [1989] and Unilever Plc v Procter & Gamble Co [2000].

Are there exceptions where “without prejudice” letters can be admitted in court?
Yes, such as when communications involve fraud, threats, undue influence, or misrepresentation.

What should journalists do if they receive a “without prejudice” threat?
They should assess the context, summarise rather than publish the full letter, and seek clarification if needed.

Why is misuse of “without prejudice” harmful?
It undermines transparency, press freedom, and accountability by creating false barriers to reporting.

Is the privilege absolute and unbreakable?
No. Courts may admit such communications when justice, fairness, or public interest requires it.

How can misuse backfire on those who attempt it?
If overused, courts and regulators may treat such tactics as bad faith, damaging credibility and accountability.