Without prejudice

What it means

“Without prejudice” is a label put on letters, emails and conversations made in a genuine attempt to settle a dispute. Its purpose is to let both sides speak freely about terms without what they offer being used against them if talks fail.

The practice came into Maltese use from English law and is used daily in employment negotiations here. Maltese courts have generally been reluctant to admit genuine settlement communications as evidence, but the protection rests on case law and practice rather than a clear statutory rule, so it should not be treated as absolute.

What it protects, and what it does not

• It protects genuine offers and discussion aimed at settling an existing dispute.
• It does not protect a communication just because it carries the label. If there is no dispute yet, or the letter is not really about settlement, the label may not help.
• It does not hide threats, or admissions of fact made outside the settlement discussion.
• Once a settlement is reached, the without prejudice correspondence may be looked at to show what was agreed.

How to use it

• Put the label on settlement correspondence from the start, and keep it there.
• Keep a separate, open channel for matters that should be on the record: a grievance, a formal objection, a reply to a disciplinary allegation.
• Do not make factual admissions you would not want a tribunal to read. Talk about terms, not fault.
• For a regulated role, remember that what is said to the regulator is a separate matter. See key function holder.