Without Prejudice vs. Solicitor-and-Client Privilege

Law is a vocation where every word counts; each word has a meaning. However, in almost all correspondence with lawyers, the words “without prejudice” or “confidential and legally privileged” are present. With the ever-growing use of email, it has become standard to include a confidentiality notice at the end of your message, just below the signature. Do we really know the meaning of the words we use though?

“Without prejudice” has been used by British courts for over 100 years. According to an article by Ronald D. Manes, Solicitor/Client Privilege, it originates from the solicitor-and-client privilege which was “established by the end of the sixteenth century and was the first category of confidential communications to be afforded a ‘privilege’”. Generally, courts have considered solicitor-and-client, husband and wife, priest and penitent and doctor and patient communications as privileged ones. The solicitor-and-client privilege is based upon the notion of confidence and honour that permits a legal adviser to communicate quite freely without the inhibiting influence that would exist if what was said between him and his client could be used as evidence or used unfairly against them before a court.

The “Without prejudice” expression does not fall under the solicitor-and-client privilege. The solicitor-and-client privilege only protects communications between a client and his lawyer. Rightly used, according to Manes, it means that the enclosed communication cannot be used as evidence before the court. This privilege encourages parties to make concessions by communicating freely and without prejudice concerning the possible compromising of their claims and settlement thereof. When added in a letter, it means that in the event of failed negotiations between the parties, nothing in the document could be taken as an admission.

Additionally, the presence of those terms on the top of a letter does not automatically categorize the communication as a privileged one. In Abrams v. Grant [1978] O.J. No. 2283, Steel J. confirmed that courts will go beyond the writing to find the real intention of the party in the communication. 

[…] the mere words “without prejudice attached to a letter do not make a document privileged and therefore protected from discovery or being admitted as evidence at trial. It is the intention of the writer and the content of the letter that govern whether or not the document is privileged.

According to Steel J., the intention is the key. If the correspondence is to make overtures for compromise or settlement, the document will be protected by the privilege. However, according to Gemma Lampert, senior associate in the dispute resolution team at UK law firm Dundas & Wilson, “the without prejudice rule is not absolute and even communications made in an attempt to settle a dispute may be admissible if the case requires it”.

The use of this expression in a communication between a client and his solicitor is unnecessary, of course, because this type of correspondence is protected by the solicitor-and-client privilege.

The “Confidential and legally privileged” notice is also widely used in correspondence. When used at the end of an email, this notice serves more as an intimidation tool, rather than a legal one. Most of the time, the recipient is not someone to whom a privileged communication protection could be expected. In D. v. National Society for prevention of Cruelty of Children [1978] AC 171, four fundamental conditions were recognized for a confidential communication to be privileged. 

1. the communications must originate in a confidence that they will not be disclosed;
2. this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
3. the relation must be one that the opinion of the community ought to be sedulously fostered;
4. the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.

A simple “confidentiality notice” will more than suffice, because the objective is to avoid the divulgation of the information that is contained within the email. The confidentiality notice will even cover the privileged communication because all privileged communications are confidential but not all confidential communications are privileged. This is where we usually err! 

Remember, everything should be used moderately. It is more valuable to use the right words at the right moment than unnecessarily intimidating words.