The law and those who practice it have their own language filled with legal jargon which can be hard for the everyday person to understand.  Amongst that jargon is the phrase “Without Prejudice, Save as to Costs” which is often used when a party is attempting to negotiate a settlement.  So what does it mean? Essentially, anything that is said during negotiations to reach a settlement cannot be used against the parties in Court if the matter goes to trial.

Before looking at Without Prejudice Privilege it is important to understand the Court process.  As you may be aware, the time between making an application at a Court and having the matter heard at trial can be long and drawn out process which can take several years.  This is because of a few reasons, the Court has limited resources, the parties need time to formulate their case and exchange relevant evidence and because the Court wants the parties to settle the matter on their own.  This is why the Courts utilise meetings where the parties are encouraged to negotiate and to compromise in order to resolve their matter without the need for a defended trial.

During the time that an application is commenced and the matter is finalised it is common for the parties to make offers and counter offers to resolve the matter because the parties are generally seeking to resolve their matter out of Court because litigation is expensive and nobody wants to carry the risk of losing at trial and having to pay for the other party’s legal costs in addition to their own.

When negotiating a settlement it is important for the parties to be able to speak openly and frankly with each other without damaging their own cases.  It is often the case that during negotiations concessions are made which would damage a party’s case but are effective in reaching a fair settlement of the matter.  If the parties were unable to speak openly then it would not facilitate negotiations and would result in more matters going to trial and using the Court’s limited resources.

This is why, generally speaking, anything said during the negotiation of a settlement is not admissible at trial as evidence against one of the parties.  That is not to say that anything said during negotiations cannot be mentioned in Court, for example if there is an issue as to who is to pay costs for a matter, any efforts made during negotiations can be raised before the Court as it would be relevant as to who is liable to pay for the other party’s legal costs.

When corresponding to another party during any negotiations, both before and after proceedings have been commenced it is important to seek legal advice to ensure that Without Prejudice Privilege will apply to the negotiations and that you are not making any admission which could be detrimental to your case.

At Lynn & Brown Lawyers our lawyers are experienced in providing advice in multiple areas of the law and are skilled negotiators.  If you are involved in a legal dispute and require assistance in obtaining a positive outcome, please come and speak to the lawyers at Lynn & Brown Lawyers who will be able to provide you with the best representation and to assist you in your matter.

About the author:

Aaron Plenderleith is a Perth lawyer at Lynn & Brown Lawyers.  Aaron was admitted to practice law in Western Australia and practices in criminal law, commercial and Wills and Estates.


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