“Without prejudice”, and what those words do

In one line. “Without prejudice” is a label people put on a letter or an email while they are still trying to settle something, and it is a statement about how the thing underneath it is meant to be read.

Two words get typed at the top of a great many letters, and most of the people typing them have only a rough idea of what they are for. Somebody is trying to end an argument, they are about to make an offer, and they write the label above it because that is what one does.

It is worth knowing what the label claims, because a label is not a spell. It says something about the writer's intention. It does not rewrite the words under it.

Where the words appear

They turn up in three places, usually. At the top of a letter, above the date. In the subject line of an email, or in its first line. And as a heading on a document that is part of a negotiation: an offer, a note of what one side would accept, a summary of a phone call.

They also turn up in a longer form. “Without prejudice save as to costs” is the same label with a carve-out written into it, and the carve-out is the interesting half — it says the letter is meant to be kept out of one conversation and available in another. The plain version carries no carve-out.

What every placement has in common is timing. The label appears while something is unresolved. Nobody writes it on a signed contract, and nobody writes it on an invoice.

What the label is trying to do

It is trying to separate two kinds of writing.

The first kind is a statement of position. This is what we say happened, this is what we say the contract means, this is what we want. That writing is meant to be used. It goes in the file, it gets quoted back, and it becomes part of the record of the disagreement.

The second kind is an attempt to end the argument. Here is what we would accept to make this go away. That writing is a concession by nature: to make an offer at all you have to come off your position a little. If every step down could be read back later as an admission, the first step would never get taken.

The label is the writer saying, in two words, that this is the second kind. Read it as an attempt to settle, not as a statement of where I stand.

Why write without prejudice on an email?

Because settlement talk moved into email, and the habit came with it. A letter has a top; an email has a subject line, so the label goes there, and it stays there for the length of the thread.

Two things are commonly noticed about that. The first is that a thread is rarely all one kind of writing. A conversation that starts as an offer often turns into an argument about the facts, and a label typed once at the start sits above everything that follows, including the parts it was never meant to cover.

The second is that a marked email is still an email. It is stored, forwarded, printed and read by whoever it reaches. The label describes a purpose; it does not describe the security of the message.

What the label does not do

It does not make the document confidential in the everyday sense. It is addressed to the other side, and the other side reads it. That is the point of sending it.

It does not change the words underneath. If a letter carries a figure, a date and a set of terms, those are still a figure, a date and a set of terms. This is one reason the paper that finally ends an argument is usually written as its own document — a settlement agreement, or a release and waiver — rather than left as a chain of marked letters. A single document that says what was agreed is easier to read than a correspondence file.

It does not put anyone's name to anything either. Agreeing to a form of words and signing them are two acts, and the paper says which one has happened: that is accepting is not signing, and a marked letter sits firmly on the first side of it.

And it does not decide its own effect. The label states an intention, and whether a particular letter is treated as part of settlement talk is worked out by looking at the letter and at what was going on around it. Writing the words on a letter that makes no offer does not make it one; leaving them off a letter that does make an offer does not settle the question the other way. If a letter you are about to send is the one that matters, ask a lawyer before it goes.

At the door. contracts.io makes paper, not legal advice, and this page is a description of a phrase rather than a view about your situation. What the door can do is give you the document that ends the argument in one piece: a settlement agreement or a release and waiver, described in plain language, with the governing law named on purpose — England and Wales, Scotland or any of the other systems on the governing law list. What that clause decides, and what it does not, is its own post.