Without prejudice save as to costs meaning

In this issue: Contract law Building safety Litigation CJC launches consultation on AI use in court document preparation Arbitration Planning Environmental issues Construction industry news Daily and weekly news alerts New and updated content Construction trackers Contract law ‘Subject to contract’—means exactly that! (Baltimore Wharf v Ballymore Properties) Construction analysis: The TCC refused summary judgment applications, concluding that once parties negotiate on a ‘subject to contract’ basis, that caveat persists unless there is express agreement by all to lift it, or such agreement must inevitably be inferred. The court emphasised that simply agreeing terms within a document labelled ‘subject to contract’ does not of itself create a binding contract. The dispute stemmed from the collapse of a nursery roof at Baltimore Wharf, with losses put at over £2m. Settlement discussions conducted ‘subject to contract’ ended with the claimant’s solicitor stating on 24 September 2024 that ‘the Settlement Agreement with WSP’s amends is agreed’....

This Practice Note sets out the scope of the 'without prejudice rule' governing the admissibility of material generated by bona fide settlement discussions. It clarifies when spoken and written communications are protected by, or fall outside, this head of privilege. It considers if pre-action exchanges may attract 'without prejudice' status, the significance of explicitly marking correspondence 'without prejudice', and how the principle applies across a chain of documents. It outlines the recognised exceptions that can render 'without prejudice' material admissible, including circumstances where extracts are deployed to cherry-pick the narrative, illustrated by examples, together with the notion of waiving 'without prejudice' privilege. The treatment of 'without prejudice' communications in the context of mediations is addressed, as are Calderbank offers marked 'without prejudice save as to costs'. Without prejudice rule The policy is that communications between disputing parties containing admissions or statements made on a 'without prejudice' basis will not be received as evidence in civil proceedings, and is commonly described as the 'without prejudice rule'. It is not...

Scope of this Practice Note This Practice Note addresses preparing a contract termination notice for breach, together with, where suitable, a without prejudice offer letter to resolve any claim stemming from the termination. It pinpoints the principal issues to assess and explains, in detail, the context underpinning the drafting of each of our bespoke termination notice Precedents and the context behind them. It also considers multiple bases for terminating, and the choice between relying on an express contractual right to terminate or proceeding at common law for repudiatory breach when both avenues exist, ensuring your termination notice is valid and evaluating whether, if deemed appropriate, to enclose it with an offer to settle any liability arising from the breach. For guidance on using our related bespoke notice of breach Precedents, see Practice Note: Drafting notices of breach of contract. When preparing a termination notice, it is vital to check that: there is a valid basis for bringing the agreement to an end—see: Is there...

Costs determination and the ‘without prejudice’ rule A persistent question for practitioners is whether correspondence marked ‘without prejudice’ can be deployed against a party when the court determines liability for costs. In Walker v Wilsher (1889), the Court of Appeal held that ‘without prejudice’ letters or conversations must not be taken into account so as to deprive the successful litigant of their costs. The judge considered that it ‘would be a bad thing’ and produce serious consequences if communications sent on a ‘without prejudice’ basis could be adduced in evidence against that party or used as a foundation for denying them their costs. The general position on referring to ‘without prejudice’ exchanges when dealing with costs has later been reviewed and reaffirmed in two Court of Appeal cases: Unilever v Proctor & Gamble (2000) confirmed that the general rule is that ‘without prejudice’ correspondence is inadmissible on the question of costs—the Court of Appeal surveyed the authorities on the ‘without prejudice’ rule Reed Executive plc...

ARCHIVED: [ insert name and address of claimant’s legal representative ] [ insert date ] Without prejudice save as to costs Dear [ insert organisation name ] [ Pre-action ] Part 36 offer [ Claimant v Defendant[ —Case number ] ] We write in relation to the above [ potential ] matter, in which we represent [ insert name of your client ]. [ Our client is satisfied that your client’s claim cannot be sustained OR Our client wishes to resolve this issue amicably OR Our client recognises the requirements of the Civil Procedure Rules for parties to seek to settle their disputes ], and we are instructed to advance an offer pursuant to Part 36 of the CPR ('the Offer'). For the avoidance of doubt, the Offer is made with the intention that the consequences set out in Section I of Part 36 shall apply...

[ ON YOUR LETTERHEAD ] WITHOUT PREJUDICE SAVE AS TO COSTS [ SUBJECT TO CONTRACT ] [ Insert date ] [ Insert name and address of other party’s solicitor ] Dear [ insert contact name ] [ Insert subject of letter ] We refer to our open letter of [ today’s date OR [ insert date ] ]. As explained in that correspondence, both we and our client remain assured that, were your client to commence proceedings in relation to the alleged claim described in your letter of claim dated [ insert date ] (the ‘Letter of Claim’), our client would be entirely successful in resisting and defeating any such claim...

Note This precedent is a defendant Part 36 offer letter and does not encompass CPR 36 provisions directed at fixed costs cases. For details on Part 36 offers in fixed costs matters, see Practice Notes: Part 36 offers—fixed costs (position prior to 1 October 2023) and Part 36 offers—fixed costs (position on or after 1 October 2023). [ insert name and address of claimant or claimant’s legal representative ] [ insert date ] Without prejudice—save as to costs Dear [ insert organisation name ] [ Pre-action ] Part 36 offer [ Claimant v Defendant—Case number ] We refer to the above [ potential ] matter and confirm we act for [ insert name of your client ]. Our client considers your client’s case to be without merit, but because [ insert explanation as appropriate ] we are instructed to advance an offer under Part 36 of the CPR (the ‘Offer’). For clarity, this Offer is made pursuant to Part 36. ...