Pride Without Prejudice

30 March 2023

AUTHOR: CELINE BAKKER

As coined by Jane Austen in Pride and Prejudice “angry people are not always wise” which underlines the objective of attempting to settle a dispute without prejudice. A statement made without prejudice is meant to be in good faith and to come to a conclusion on the dispute via settlement or negotiation.

The word “prejudice” carries the meaning to pre-judge, an attitude which justifies discrimination. It refers to favouring or being biased rather than remaining neutral towards a matter. “Without prejudice” therefore tries to indicate neutrality between the parties.

The phrase, correctly applied, is used when a settlement offer is presented to a party in dispute with another in confidentiality and is legally protected. It underlines that no admission is made, nor are any rights waived or any agreements conceded to under the ‘without prejudice’ correspondence or communication. This may be the case in terms of business negotiations and or out of court settlement discussions.

It allows parties to communicate without the fear of the settlement offer being brought against them in a court proceeding. Hence, where correspondence is headed ‘WITHOUT PREJUDICE’ such content may not be presented as an admission to the court. In doing so, it could influence the outcome of the case because the court could be, as Austen would put it, “blinded by prejudice”, ultimately affecting the parties’ legal position through the court favouring one party over another.

The purpose behind the words “WITHOUT PREJUDICE” is to encourage the settling of a dispute in good faith and with the assurance of the settlement offer not being used against them. As coined by Albert Einstein, “it is harder to crack a prejudice than an atom”.

Importantly, merely adding the words “without prejudice” does not guarantee such will be kept confidential or refused from being presented in court. Simultaneously, should “without prejudice” be omitted from communication, such can nevertheless be rendered as without prejudice correspondent if parties clearly intended for the content to be protected. The without prejudice rule will apply, irrespective of whether the specific words were added to the statement or not. 

Further, it is important to note that in certain jurisdictions, courts may admit evidence into court despite the parties intending to keep such information protected and confidential. This includes matters where parties’ dispute involves the scope, nature or reasonableness of a settlement; acts of fraud or misrepresentation; where a statement can give rise to estoppel; and where a party attempts to justify why there was a delay.