Without prejudice? Help!

[OpalWhiteley]

I have taken a company to small claims court and agreed to mediation prior to the hearing. They have made me a settlement offer which reads on the top "Without prejudice save as to costs". I understand this means I can't refer to anything in the offer letter in court if the claim proceeds to a hearing. (?)

I am about to reply with a counter-offer (I don't have a solicitor) and have followed suit and written "Without prejudice… etc" on the top of my letter.

In my letter I have pointed out that there are several mistakes of fact in their defence (I have proof of these).

So I'm now wondering why I should do mark my letter "Without prejudice". I don't have anything to hide and if it does proceed to a hearing I would want the judge to know that I had provided certain information to the defendant that is stated in the letter (i.e., that I had pointed out their factual mistakes).

Should I just remove the "Without Prejudice (etc)" line from my letter?

If it’s without prejudice you can still produce it. It stops the other side relying on it.

If you aren’t bothered about your letter being open correspondence then don’t mark it WP. The purpose of that is for negotiation.

The best thing to do though IMO would be to:

Send a letter marked without prejudice rejecting their offer and putting forward your counter offer
Send a letter not marked WP outlining the mistakes in their defence.

Thanks RedcurrantPuff

So could I still produce my own letter in court as evidence that I'd told the other side about their mistakes, even if it's marked WP?

If I went with your alternative suggestion how would I link the two letters? Something like this?:

Letter 1: (WP) "I reject your offer but would accept a settlement of £XYZ. The reasons for this are outlined in Letter 2"

Letter 2 (not marked WP): "Your defence is faulty as it contains the following mistakes of fact:…"

OP to be aware a without prejudice heading means the contents can’t be disclosed. However, by adding save as to costs it means is can be disclosed when looking at costs I.e. did you act reasonably.

I would use exactly the same WP heading and include why you are rejecting the settlement offer is because their figure is based on these mistakes of fact -set out what they are. Then state £10k is reasonable in light of this as doesn’t include interest and costs to date.

Then send a second letter without WP correcting the mistakes of fact (copy paste).

You then have mistakes of fact that can be disclosed and a reasonable refusal of settlement as WP if costs become an issue.

Thanks Margaritatime. I will do that.

... Having said that, I've just gone through the letter and there isn't anything in it I wouldn't want the judge to see, or wouldn't want to be considered in court. Should I just send the entire letter with the "without prejudice" line removed?

Or because it is responding to a "without prejudice" letter is it automatically assumed to be the same unless I specifically state otherwise or send a second letter.

(What a minefield! I thought Small Claims Court was supposed to be accessible to legal ignoramuses like me.)

Grateful for any advice!

To be honest I am not sure of the legal position if it doesn’t have WP explicitly on the letter but is in response to a WP offer. Hopefully someone else can advise.

If your reply refers to their WP correspondence even if you don't head it WP then those sections would still be privileged and so if you wanted to produce the letter in court those sections would need to be redacted.

The easiest and neatest way forward is the two letters suggested up thread by Margaritatime.

@EdithDickie Thanks. I hope I have done this correctly. I have sent two letters:

1. One WP that states my counter-offer.
2. One open correspondence that goes through all the facts I am disputing.

However, on the top of both letters I have cited the reference number from their WP offer.

Does this mean the second letter will also be WP even though I haven't marked it as such? (I haven't written "open correspondence" on it either, although I did state that it was in my email.)

The WPSATC letter should be treated as if doesn't exist until you get to discussing costs. So don't refer to it at all in open correspondence. State your position without referring to the WPSATC letter at all.

If you want to reference the WPSATC letter you should do that in your own letter marked WPSATC.

Often in litigation you end up with two parallel strands of correspondence with the open one saying "you are completely wrong about everything and we will see you in court" and a WPSATC strand that says "we are not admitting anything but you kinda have a point so here's some cash".

@eurochick Thanks for your reply. Unfortunately I've already sent the two letters I mentioned above, so how can I fix this mistake?

Can I just resend the open correspondence letter after removing any reference to their WP letter? (i.e., the reference number and one or two sentences that begin "Your letter states…")

Or because I've already sent the information in a WP letter will I never be able to use this information in court?

Or should I write to them saying "I retract the open correspondence letter and here is a new one"?

Is it only the reference number you have used on the open letter?

Small claims courts are supposed to be user friendly for litigants in person so I imagine a judge would just brush over any minor slips. If you've referred to a settlement offer made WPSATC in an "open" letter that would be trickier and might be treated as WPSATC depending on the content.

@eurochick

It wasn't only the reference number, unfortunately.

One of the paragraphs in my letter starts with "Your letter states that I admitted X…" "X" hadn't been included in any previous correspondence.

I also start two paragraphys with "I agree that…" This is referring to items that were stated in their WPSATC letter, but have also been stated in previous correpondence.

I haven't referred to the settlement offer itself at all (except in my separate WPSATC letter).

Could you just redact the reference number and the paragraph that refers to their WP letter? And then you could use the lettter in court?

I'm not a legal person so just wondering myself.

The law on WP privilege is actually pretty complex OP, you won’t be expected to get it exactly right as a litigant in person. In fact, I’ve come across many lawyers who don’t understand how it works!

The basic position is that it’s the content of the correspondence that determines if it’s privileged or not. If there is a dispute in place and the correspondence serves the purpose of trying to settle that dispute then it will be a WP document.

Using headings helps to demonstrate the parties intentions as to its open admissibility but it certainly isn’t definitive. I’ve had to go to numerous hearings to deal with the admissibility of documents that are mistakenly marked (or not) as WP.

It’s possible for you to waive privilege (even accidentally). But you can’t waive the other sides right by referring to WP correspondence in open communication unless they agree to it. Given that it’s the small claims track though it probably isn’t likely they will get too embroiled in it (but I don’t work on small claims track cases so can’t really say for sure).

The only other thing I would say is that if you have made certain admissions of fact in your letters (“I agree that...”) then really that is now part of your case. Depending on what the admissions are, if you tried to deviate from that then that could be unreasonable conduct that could also mean that WP privilege doesn’t apply...

In general terms to avoid the issue in future - a reply to WP correspondence, responding to their points, using a WP heading and specifically referring to the terms of their offer will usually be okay even if you’re rejecting the offer.

Open letters can deal with the points in dispute openly but not if they have arisen as a result of, or in response to WP correspondence. These letters shouldn’t even refer to WP letters.

Keep the two things completely separate and you’ll be fine.

@MrsPinkCock Thank you for your detailed reply. Is there any way I can rectify my mistake? I have already sent my "open correspondence" lettter. One of the paragraphs starts with "Your [WP] letter states that I admitted X…" "X" hadn't been included in any previous correspondence.
However, this is a very minor point.

Would Blizzard's suggested solution be allowed?

Honestly? I wouldn’t worry about it. It’s their point to argue if need be - you’re a litigant in person so the court won’t expect you to get it exactly right!

If they argue it then you could include a redacted letter which removes the WP points. Technically they could argue that as well as there’s case law to suggest the whole lot could be excluded but frankly unless it’s going to cause them serious damage then it probably isn’t worth their clients legal fees arguing about it! The SRA code of conduct requires solicitors to be more explanatory and lenient to unrepresented parties (it’s not worded like that but that’s the result) so you should get some warning if they have a problem with it. But if it’s low value and doesn’t materially impact them then it’s really not something I would argue about.

@MrsPinkCock the remainder of the letter is crucial to my case. Ironically, the part that is in response to the WP letter that would be redacted is a very minor point that I probably could have left out.

They haven't said they have a problem with it… yet.

Should I resend the letter with the one controversial point removed or is it too late?

No it’s not too late. I would email it with a covering email that says that part of the content of the previous letter was sent in error and to please accept the attached revised version and delete the previous version.

MrsPinkCock Many thanks. I will do that.