Without Prejudice Save as to Costs: What does it Mean?
The words ‘without prejudice save as to costs’ can be one of the most important phrases used by solicitors when trying to settle a case. Opposing parties can aim to settle the dispute before proceeding to court as a form of alternative dispute resolution. The use of the ‘without prejudice’ phrase on documents ensures such correspondence cannot later be used against a party as evidence in court.
At Greener Costs, our costs experts have many years of experience dealing with settlement agreements and understand cost implications that can surround the ‘without prejudice’ term. If you are looking for advice on the subject, then please get in touch with our team to find out more how we can help.
How Does Communication Qualify as Without Prejudice?
For communication between parties to qualify under ‘without prejudice’, there must be a genuine attempt to resolve and settle the case to save proceeding to court. Under the term, any labelled correspondence cannot be used in court, which enables the parties to speak freely about the existing dispute to encourage an out of court settlement. Marking communication as ‘without prejudice’ means that:
- The contents of that correspondence cannot be used as evidence in a court case
- The contents cannot be taken as the last word on the case
- The contents cannot be used to set a precedent
In some instances, ‘without prejudice’ communication does not need to explicitly be marked as such for it to be considered so, as ‘without prejudice’ can be heavily implied, but it is strongly recommended to mark it down to save any confusion or cause of discrepancy.
Similarly, marking a document clearly ‘without prejudice’ does not automatically provide it protection from use in court if it is to be found that the correspondence doesn’t make a clear and genuine attempt to settle the dispute at hand.
It is worth noting that solicitors utilise two main types of correspondence, documents marked ‘without prejudice’ which accepts the dispute at hand and attempts to resolve it through negotiation to save time and money, and also ‘open’ letters. Open letters would primarily be used to discuss liability itself so if it comes to court proceedings, a judge is able to see a party’s argument before making their decision.
If a case progresses to court, the judge also possesses the power and authority to decide if documents are granted the privilege of ‘without prejudice’ and can ultimately decide if any part of a document that doesn’t attempt to negotiate a settlement can be used as evidence.
It is important to note that the without prejudice rule cannot be used for all areas of the law and all cases, as a general rule, prejudice privilege will not apply for the following:
- Commercial negotiations
- Cases in which communication includes illegal, fraudulent or misinterpreted comments
- Communication which is not genuine
- Documents that have already been exchanged with consent
- Where communication clearly states it is not confidential
What Does Without Prejudice Save as to Costs mean?
‘Without prejudice’ and ‘without prejudice save as to costs’ mean two slightly different things.
Evidence labelled ‘without prejudice’ can be looked at by the courts to decide which party should pay for the legal costs of the proceedings once they have agreed on general liability. Whereas the term ‘without prejudice save as to costs’ means the courts cannot look at such documents until they have delivered a judgment on the main issue at hand. Documents under ‘without prejudice save as to costs’ helps the courts decide how to award costs once they have ruled on liability.
Correspondence labelled ‘without prejudice save as to costs’ can be accessed by the judge for them to decide how to award costs. The courts can look back on the correspondence or communication containing negotiations of settlement which can be brought to the court after a decision is handed down.
The unsuccessful party in the case will usually be expected to pay the opposing party’s legal costs and the court may use the evidence labelled “without prejudice save as to costs” to decide on the costs payable. The court will consider if the parties made attempts to reach a settlement and any unreasonable actions during settlement communications to determine the amount in costs.
It is worth noting that if a party made an offer to settle the case before proceeding to court, and the offer was marked ‘without prejudice save as to costs’, that they can use the communication as evidence in court to argue that they had made a reasonable and genuine offer that wasn’t accepted and now have steep legal fees to pay to cover the court case. Arguing this may entitle them to a larger amount of costs by the judge and exemplifies how being cooperative in the early stages of settlement negotiations assists parties in their overall costs recovery further down the line.
How Can Greener Costs Assist?
At Greener Costs, our team of Costs Lawyers and Costs Draftsmen have many years of experience surrounding costs drafting and negotiation. If you need any advice surrounding the cost implications surrounding the term ‘without prejudice save as to costs’ then our team can help.
We are able to assist clients from all backgrounds on a range of cases and can help you recover costs from your case as well assist paying or receiving parties with bills of costs and Points of Dispute/Reply.
With our extensive knowledge and highly skilled team, we can provide law costing services to clients throughout England and Wales and are also proud to be represented on Your Legal Advisor’s panel of costs experts.
In addition to our drafting services, at Greener Costs, we are actively doing everything we can to ensure our business benefits the environment. We are doing this though carbon offsetting of our staff, becoming completely paperless and carbon offsetting through each instruction.
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