I have an outstanding claim against a company. They have agreed to settle before the hearing, but, it is subject to me filing a notice of discontinuance to the court which is understandable.

The entire email chain, including the offer was marked without prejudice - which I fully understand whilst we were discussing it.

Whilst I don't trust the company, this agreement was made with their solicitors and I believe it will be done honestly, and I am happy to sign/send, however, I am wondering if this is legally correct?

Should the last email confirming be sent without the without prejudice tag, or, is an agreement within an email legally binding?


Its difficult to tell without seeing the exact paperwork, and the exact meaning of without prejudice varies by jurisdiction (I think UK is the same as here in NZ though).

If an agreement is reached through communications marked "without prejudice" it should be valid in court to the extent that it shows an agreement was reached and what the agreement was (but the court will not generally look at the documents marked without prejudice for other reasons – e.g. admissions made – if no agreement is reached).

There are a couple of other relevant things to mention – although not strictly part of your question:

  1. Lawyers are officers of the court, and have duties to the court, which include acting ethically. So, provided it's a reputable law firm, it is reasonable to (somewhat) trust their solicitors in procedural matters.

  2. My understanding is that courts encourage anything that will help settle a matter out of court – hence the whole idea of "without prejudice" letters being valid. I believe that the court will uphold an agreement reached through communication of without prejudice emails as it's in their interests.

  3. If you have these kinds of concerns, you can raise them with their solicitor, suggesting that you would prefer the final document to not be without prejudice, even if it only refers to the matter and agreement, without sensitive stuff. I imagine they would be only to happy to oblige, as they can bill their client for another letter!

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  • That's great, thank you.... also, happy - I agreed yesterday, signed the form yesterday and I was paid this morning. I didn't think there was anything to worry about, but, this is great information to know. – William Hilsum Jun 22 '16 at 14:29

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