How to evidence “without prejudice” correspondence?

[EH1962]

We are in dispute with a trader who has issued court proceedings against us. He has several times written “without prejudice” on emails, which are clearly not part of any settlement talks and contain no settlement offer but which would help our case in terms of conduct. Can we include these in our disclosure pack as evidence? Can he object and can any action be taken against us for it? Alternatively is there a procedure we can follow which is free and doesn’t require him to agree they can be used?

Thank you in advance for any help you can give us.

[EXC]

Re: How to evidence “without prejudice” correspondence?

In general terms correspondence marked 'without prejudice' should only be marked as such where it is used in conjunction with a bona fide attempt to resolve a dispute.

It might be wise to inform him in advance that you intend to use it (on the grounds that in your view WP doesn't apply) giving him the opportunity make a formal objection. That way it demonstrates to the court that you have acted reasonably.

I will just say that you need to be careful using the correspondence soley for the purpose of illustrating bad conduct, unless it has relevance to you case.

[EH1962]

Re: How to evidence “without prejudice” correspondence?

Thank you for the prompt response EXC - very helpful and we will inform him beforehand then. We were thinking we wanted to have the correspondence available to use in case we needed it in Court, depending on how he argues his case. Also in case the question of costs against us arises, we wanted to be able to evidence his conduct, which we believe to be overly aggressive, misleading and threatening and which in our view he has tried to conceal using “without prejudice”. Very appreciative of your advice.