Without Prejudice

Without prejudice is the privilege that protects communications genuinely aimed at settling a dispute from being put before a court or tribunal as evidence. The rule encourages parties to negotiate freely, since admissions made in settlement talks cannot later be used against the maker. Labeling a letter without prejudice is not conclusive; the privilege attaches to the substance, an attempt to settle an existing dispute, and a court will look past a mislabeled document. A variant, without prejudice save as to costs (the Calderbank offer), reserves the right to show the offer to the tribunal after judgment on the question of costs. The privilege is joint and cannot be waived by one party alone.