Don't Allow Pride To Come Before Without Prejudice Privilege

19th June 2017 Commercial

Sometimes a prospective client might find themselves with a legal problem which they would rather not talk about, or which they are worried about becoming public knowledge, or which they would rather not undergo the stress of a court case to resolve.

Perhaps they have loaned money to a friend or business associate in good faith, only to have the debt left unpaid; or have a commercial agreement which they are having trouble enforcing; or suffered loss as a result of a breach of contract or negligence, but which they feel too uncertain to instruct a solicitor to pursue legal action.

In these situations a good commercial litigation solicitor can help to resolve the problem discreetly and conveniently, without resorting to a public court case.

Where disputes arise we encourage clients to explore settlement on what we call a 'without prejudice' basis.

Without prejudice means that what follows cannot be used as evidence in a court case or disclosed to a court.

This protection is there to encourage parties to a dispute to talk freely about their positions and to make concessions, without fear of tactical disadvantage.

It also allows the parties to gain an idea of the other side's approach to the case and the opportunity to try to agree a narrowing of issues all of which can benefit the future progression of a claim, if not resolve it entirely.

For the protection of 'without prejudice' to bite there must be a genuine desire by both parties to resolve their dispute.

When making honest attempts to settle a dispute on a 'without prejudice' basis, the contents of those discussions will generally not be admissible in court and therefore cannot be used as evidence against you.

The courts are keen to uphold the protection afforded by without prejudice privilege and any party seeking to rely on evidence obtained during without prejudice discussions is likely to get little or no attention from a judge.

Exploring settlement on a 'without prejudice' basis can often be the most advantageous course to pursue, for it is a low risk strategy with many options along the way, and which if entered into in good faith can result in discreet, expedient and highly satisfactory solutions.

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Louise Wakely is a Senior Associate located in Manchesterin our Commercial Litigation department

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