Daniel, I have a question about writing a letter to the opposing party’s lawyer. The person I am chasing for many has

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Customer: Hello Daniel,I have a question about writing a letter to the opposing party’s lawyer.The person I am chasing for many has retained a lawyer. They have sent me a letter with an aggressive counter attack, stating that in fact I owe them money and that I have to prove that I don’t, or something .....They also encouraged me to start a court case.I said I wanted to resolve the matter out of court.Anyway, I am writing a letter with some evidence, but I am a bit nervous about the lawyer using my statements and twisting them against me if this ever goes to trial.So, with that in mind - should I be starting every letter with the “without prejudice” clause? Or is this something that is used only when I am putting an offer on the table?And if yes to using the ‘without prejudice’ phrase when sending a response with evidence - what exactly should that statement say?Many thanks!
Maja
Answered by Daniel Freudman in 3 mins 3 years ago
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Daniel Freudman, Expert

Any correspondence with the clear intention of negotiating is generally assumed to be Without Prejudice. That said, it certainly doesn't hurt to write Without Prejudice on the top to make it clear that such shall not be used against you in any future legal proceedings, even if it's not exactly an offer.

If you attach evidence to the Without Prejudice letter, although you could argue that evidence is also without prejudice, they may still try to use that evidence at any trial if it appears as though it helps them, and then it would be up to you to object by arguing it was all Without Prejudice, and then up to the judge to rule on the issue.

Does that answer your question?

Customer
Thank you, ***** ***** very helpful.Quick clarification, if I am not discussing/proposing resolution or settlement in this particular letter, but rather responding to their accusations (I said in a separate letter than I want to sort things out out of court) - does the ‘without prejudice’ rule even apply?
Many thanks!
Maja
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Daniel Freudman, Expert

I will clarify. Generally, any negotiation correspondence is assumed to be without prejudice, even if you don't write it. For other correspondence that is not necessarily negotiation correspondence, will be assumed with prejudice, so to avoid that you may wish to write Without Prejudice on it to gain that protection.

Again though, still be careful as even though writing Without Prejudice on it would let you argue that it can't be used in court, they may still try to use that evidence at any trial if it appears as though it helps them, and then it would be up to you to object by arguing it was all Without Prejudice, and then up to the judge to rule on the issue.

Does that answer your question?

Customer
Certainly does.
Many thanks!
Maja
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Daniel Freudman, Expert

You're welcome, all the best!

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Daniel Freudman, Expert

I actually just found this which says what I was saying, just more succinctly:

Without prejudice. The without prejudice (WP) rule will generally prevent statements made in a genuine attempt to settle an existing dispute, whether made in writing or orally, from being put before the court as evidence of admissions against the interest of the party which made them.

My information above still stands, this just articulates my points better I feel.

Customer
Perfect! Greatly appreciated Daniel.
Have a lovely evening.
Maja
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Daniel Freudman, Expert

You're welcome, and you too!
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