The four W's of Without Prejudice privilege

1. What is without prejudice privilege?

Without prejudice privilege, commonly referred to by its initials, ‘WP’, is the privilege applied to communications where the contents represent a ‘genuine attempt to reach a settlement’[1] of a matter. It is a protection afforded to parties where they are trying to reach an agreement which will, almost inevitably, involve an aspect of compromise. That party offering the compromise will not want that concession disclosed to a judge in court if an agreement cannot be reached and, subsequently, negotiations break down.

WP privilege is a common law principle found in civil law generally, not just in family law. It is particularly useful for resolving family matters as the courts  encourage parties reaching an agreement themselves as,  this will likely save on legal fees and avoid the stress of court hearings and result in a more satisfactory outcome, particularly where the subject matter is so personal.

An example of WP privilege being relied on is where a letter or email is sent with the words ‘without prejudice’ included, usually in the subject. This correspondence could be sent by a solicitor, barrister, mediator or a lay person (WP privilege is not exclusive to legal professionals). However, the inclusion of those words alone will not succeed in attracting privilege if the actual content of the correspondence is not representative of a genuine attempt to settle the matter. As such, it is possible for part of a letter or email to attract WP privilege, such as the paragraphs setting out an offer or counter offer, while the remainder, that may relate to administrative matters or factual content (such as the actual balance of a bank account) outside of negotiations will not.  

Other oral communications, such as a conversation, telephone call, in person or remote meeting can be covered by WP privilege. In those circumstances, it is customary for to signal that the following discussion will be covered by without prejudice by saying they are speaking on a ‘WP basis’. Whilst this is standard practice for many lawyers, it may be alien for a client to adopt such terminology when communicating with the other party directly. Indeed, it may signal to the other party that they have done their homework and are preparing for the potential of litigation. Nevertheless, being aware of this privilege and how to use it can be hugely beneficial if you are a lay person trying to resolve your matter in a cost-efficient way.

2. Why do we have WP privilege?

In short, it is to protect a person’s position when they are trying to resolve a dispute. A WP compromise offered in the course of negotiations should not be relied upon at a final hearing or trial if those negotiations were unsuccessful. A party proposing a WP compromise can take comfort in knowing that a judge at a final hearing will not be aware they had made that concession as part of WP negotiations.

There is a public policy perspective as it is in the interest of the general public, not just the parties engaged in the litigation, not to litigate matters to the very end. To rely on the court process increases costs for the parties in that litigation and affects the wait times for all parties going through the court system. In 2022, the court backlogs have continued to worsen despite the effects of the pandemic diminishing. In these times, a focus on reaching a settlement outside of the overstretched and underfunded court room, without the cost, uncertainty and many months delay caused by waiting and/or preparing for the next hearing is even more important than it was previously.

3. When should I use WP privilege?

As WP privilege will only protect communications that are attempting to settle a matter, it is utilised when negotiating. This does not mean it can only be relied upon when settling the substantive matter; it can be used when negotiating a discrete aspect of a dispute too. Often negotiations are seen as occurring during the middle to latter end of proceedings. However, the privilege could be relied on at any time during the start, middle or end of a matter.

If you are trying to resolve an issue with another party directly, you can refer to WP privilege when speaking or writing to them. If you have legal representation, your solicitor or barrister should advise you as to when this privilege should be adopted.

4. Where do you find WP being used?

As mentioned above, you may find ‘without prejudice’ referred to in written correspondence, or referred to verbally in a call or meeting.

The second hearing in a financial remedies case, the Financial Dispute Resolution appointment, more commonly referred to as an ‘FDR’, is completely covered by WP privilege. This is because it is a hearing used specifically negotiation where the parties attempt to reach a settlement. This means that documents specifically prepared for the hearing, such as the offers for settlement, and what is said during the hearing itself, are privileged and the judge at the final hearing, who will always be different to the judge at the FDR (if the matter does not settle at or after the FDR) cannot have sight or knowledge of these documents or what was said. However, the factual elements of the hearing, e.g. the asset schedule, will not be covered by WP privilege.

The extent of the protection afforded by WP privilege is highlighted in the case of V v W [2020] EWFC 84 where the husband sought disclosure of the transcript of the FDR and material prepared for the hearing in order to disclose it in a civil matter brought against him by the single joint expert instructed to value his company as part of the financial remedy proceedings (due to the husband’s non-payment of their fee). The wife did not agree to the disclosure of the documents and the judge held that he was bound by Practice Direction 9A paragraph 6.2 of the Family Procedure Rules[2] (“FPR”), which states that non-disclosure of the FDR is ‘essential’ save in limited circumstances (see the exceptions section below). This highlights how WP privilege continues to apply even after the proceedings have concluded.

Despite the numerous references to litigation and court in this article, you do not have to be in proceedings in order to benefit or rely on WP privilege. A common example is mediation as this process is also covered by WP privilege in its entirety (except, again, in relation to factual elements like an asset schedule or financial disclosure). Often mediation is utilised as a first step of resolving a dispute, perhaps before court is even a consideration by either party. Nonetheless, it is crucial that parties mediating can speak freely, regardless of the stage they are at, to see if common ground can be found and an agreement reached.

Are there any exceptions to without prejudice privilege?

1. Despite differing opinions from legal practitioners about the use of WP privilege in relation to non-financial children matters, you should never rely on WP privilege in negotiations about child arrangements because there is the chance that the court will say that the privilege does not apply to those. You should always assume that the correspondence/oral negotiations will be referred to openly in any future court proceedings.
2. If the communication does not representative a genuine attempt to settle, WP privilege should not apply even if the words ‘without prejudice’ are included.
3. WP privilege can be waived by the parties if they both consent. One party seeking to waive the privilege is not sufficient to permit disclosure of a WP document. If a party continues to seek disclosure of WP privileged documents without the other party’s agreement, they would need to apply to court for permission.
4. Other exceptions were identified by Robert Walker LJ at paragraph 2 of his judgment in Unilever PLC v The Procter & Gamble Co. [2001] 1 W.L.R. 2436[3] which included; where the WP communications had resulted in a settlement, where there was fraud, misrepresentation or undue influence, where the exclusion of the WP privilege evidence would conceal blackmail and to explain delay.
5. Finally and importantly, it is acknowledged in PD12B paragraph 5.11 of the FPR that despite mediation being a ‘confidential process’ a mediator is permitted to provide information to the court if any safeguarding issues arise concerning children.

These exceptions should not detract from the efficacy of utilising WP privilege. WP privilege should be seen as a useful and arguably necessary tool in resolving disputes of all kinds by lawyers and lay persons alike.