Without Prejudice vs Open Correspondence
Understanding when to write 'without prejudice' and when to write 'open', and the legal effect each label has on admissibility and costs.
Overview
In civil litigation and pre-action correspondence, parties often label their letters either 'without prejudice' or 'open'. The label chosen has significant legal consequences. Without prejudice communications are protected by privilege and cannot ordinarily be shown to the court when determining liability, encouraging candid settlement negotiations. Open correspondence is admissible in evidence and may be placed before the judge at any stage. The without prejudice rule was definitively confirmed in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280. The label alone does not create the privilege — the communication must be a genuine attempt to settle a dispute; a letter written 'without prejudice' that merely states facts or makes demands carries no protection (Unilever plc v Procter & Gamble Co [2001] 1 All ER 783). Costs-related without prejudice communications (including Part 36 offers) can be shown to the costs judge after liability is resolved: Cutts v Head [1984] Ch 290.
Side-by-Side Comparison
Without Prejudice Correspondence
Pros
- Allows frank concessions and offers without fear those admissions will be used against you at trial
- Encourages settlement by creating a safe negotiating space — consistent with the overriding objective (CPR r.1.1)
- Protected even where negotiations fail — the other side cannot exploit your flexibility as evidence of weakness
- Remains privileged after litigation concludes unless both parties agree to waive it
Cons
- If the letter is not a genuine attempt to settle, it will not attract privilege — courts look at substance, not label
- Cannot be shown to the judge on liability, so concessions made without prejudice do not form part of the court record
- Privilege can be waived inadvertently — e.g. by referring to without prejudice communications in open correspondence
Best For
Settlement negotiations, offers of compromise, admissions made for negotiation purposes, and any correspondence where a party wants to explore settlement without risk.
Open Correspondence
Pros
- Fully admissible — can be used to demonstrate reasonableness, effort to settle, or to prove what was said
- Open offers can be placed before the costs judge even before the liability hearing concludes
- Creates a clear, unambiguous record of the parties' positions and any agreements reached
- Can be used to put the other party on notice — e.g. an open offer that is unreasonably refused may influence costs
Cons
- Any admission made in open correspondence can be used as evidence against you at trial
- Limits the candour of negotiations — parties are less willing to explore compromise if everything is on the record
- An open offer does not carry the automatic costs consequences of a Part 36 offer (CPR Part 36)
Best For
Formal demands, letters before action, factual correspondence about the dispute, and correspondence intended to create a record of reasonable conduct.
Key Differences
Our Recommendation
Use 'without prejudice' for any communication intended to explore settlement — this protects your negotiating position. If you want your offer to carry automatic costs consequences, use a Part 36 offer (CPR Part 36) rather than a plain without prejudice letter. Use open correspondence for formal demands, letters before action, and any communication where you want to create an admissible record of your position or the other party's response.