In legal disputes, parties often exchange settlement communications, aiming to resolve matters without resorting to litigation. These communications are frequently marked "without prejudice" to ensure they cannot later be used as evidence against the party making the statement. However, the use and effect of "without prejudice" correspondence are often misunderstood.
What Does "Without Prejudice" Mean?
"Without prejudice" is a legal principle that protects genuine settlement negotiations from being used against a party in court. This principle allows parties to freely negotiate a settlement without fear that their words will later be held against them.
For correspondence to be truly "without prejudice," it must be:
A genuine attempt at settlement;
Made in the context of resolving a dispute; and
Clearly communicated as "without prejudice" or impliedly intended to be protected by the rule.
What Counts as "Without Prejudice"?
The courts assess the substance rather than just the label of the document. If a letter, email, or conversation is genuinely part of settlement discussions, it is likely to be protected. Conversely, merely marking correspondence "without prejudice" does not automatically grant it protection if it does not contain a genuine attempt to settle.
Examples of protected correspondence include:
A letter offering to settle a dispute for a specific amount;
An email suggesting a compromise to avoid litigation; and/or
A meeting or phone call where parties negotiate a resolution.
What is Admissible and What is Not?
While without prejudice communications are generally inadmissible in court, there are exceptions:
Admissible in Court:
If both parties agree to waive without prejudice protection.
If the communication contains evidence of fraud, misrepresentation, or undue influence.
If it includes an admission relevant to a separate dispute (e.g., criminal activity).
Where the document assists in interpreting the terms of an agreement reached.
Not Admissible in Court:
Settlement offers or negotiations.
Statements made to encourage settlement, even if unfavourable to the offering party.
Discussions made under the reasonable belief that they were without prejudice.
Without Prejudice Admissions and Interruption of Prescription
One significant case in South African law that highlights the impact of without prejudice communication is KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd [2017] ZASCA 98. The Supreme Court of Appeal held that an acknowledgment of debt in a without prejudice letter interrupts prescription under the Prescription Act 68 of 1969. This ruling means that even if a debtor admits liability in settlement discussions under without prejudice protection, that admission can still reset the prescription period of the debt.
This case serves as a crucial cautionary tale—admissions of liability made in settlement discussions, even if labelled "without prejudice," can still affect prescription and should be made with legal advice.
Caution: Avoid Overuse of "Without Prejudice" Markings
While marking correspondence as "without prejudice" is useful, overusing the term can weaken its intended effect. Some key cautions include:
Do not assume it always applies
If a letter is not part of a genuine settlement negotiation, it may still be admissible.
Avoid mixing settlement with non-settlement discussions
If a document contains both settlement negotiations and general admissions, the admissible parts may still be used in court.
Be wary of prescription implications
If an admission of debt is made in a without prejudice letter, it may reset the prescription period.
Do not use it to hide damaging admissions
Courts will disregard without prejudice protection if it is used to conceal fraud or illegal activity.
Conclusion
Understanding without prejudice correspondence is crucial in legal disputes. While it offers protection in genuine settlement negotiations, there are key exceptions, particularly concerning admissions of debt and prescription. Care should be taken in marking documents as "without prejudice," ensuring that they serve their intended purpose and do not inadvertently expose a party to legal consequences.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For specific legal guidance, consult Spence Attorneys at info@spencelaw.co.za
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