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Confidentiality in Disputes: The Role of ‘Without Prejudice’ in NZ
17 October, 2023 | Nathan Tetzlaff
If you are in a dispute with someone or trying to settle an issue before it becomes a full blown dispute, you may come across something being “Without Prejudice”. The two most common times you’ll encounter this are in a letter or email from the other party or their lawyer, or in a meeting or phone call.
If a communication (including emails, phone calls, video calls, letters or something said in a meeting) is without prejudice this means that it is legally privileged, meaning that it can’t become evidence in Court. This is another way of saying that it’s off the record, officially.
A communication is privileged/ without prejudice if it meets two criteria:
- It was intended to be confidential; and
- The communication was made in connection with an attempt to settle or mediate the dispute.
The easiest way to prove the first criteria is to expressly say that a conversation is without prejudice or write that in the email or letter. So if you get a letter which says that it is without prejudice, so long as the content of the letter is an attempt to settle or mediate a dispute then it probably can’t be used as evidence in Court.
Why would someone want a communication to be without prejudice?
Settling a dispute usually requires making compromises. Sometimes a person will admit something in an off-the-record conversation that they would not say if that admission could be used against them in Court. Perhaps that is to be open and honest; perhaps they want to apologise. Or perhaps they don’t have a lot of self-control and they just blurt out something.
If everything is on the record as evidence in the case, people might just deny deny deny, or refuse to attend meetings, and that might make settlement of the dispute impossible.
Having communications be without prejudice means people can be more open, and don’t have to worry about slipping up and saying something they shouldn’t.
Why would the Court let a communication be without prejudice?
Okay, so a person has admitted that they did something wrong in a letter, but the letter was without prejudice. If you could give that letter to the Court as evidence, you’ll win your case! You might think that being unable to show the letter to the Court about this is very unfair.
The reason for communications being without prejudice is to encourage settlement. Going to Court takes time and is very expensive in most cases. Settlement is almost always better for everyone. Parliament and the Courts have decided that allowing some communications to be without prejudice, privileged, and off the record, helps settlement which helps everyone.
Ready to navigate your civil and commercial disputes with confidence? Contact Nathan Tetzlaff, expert dispute resolution lawyer, today. His extensive experience can help you achieve the best possible outcome. Don’t hesitate, reach out now for personalized assistance.
To schedule an appointment with Nathan, please contact litigation assistant, Mikayla Sagar by email on Mikayla.sagar@smithpartners.co.nz or by phoning 09 837 6890
