“𝗪𝗶𝘁𝗵𝗼𝘂𝘁 𝗣𝗿𝗲𝗷𝘂𝗱𝗶𝗰𝗲” 𝗢𝗳𝗳𝗲𝗿𝘀: 𝗔 𝗦𝘁𝗿𝗮𝘁𝗲𝗴𝗶𝗰 𝗡𝗲𝗴𝗼𝘁𝗶𝗮𝘁𝗶𝗼𝗻 𝗧𝗼𝗼𝗹

“Negotiation thrives on candid dialogue and finding common ground.” Disputes are a reality in construction and other industries. Resolving them efficiently can significantly impact timelines, relationships, and costs. One effective but often misunderstood tool is the “without prejudice” (WP) offer.

𝗪𝗵𝗮𝘁 𝗜𝘀 𝗮 “𝗪𝗶𝘁𝗵𝗼𝘂𝘁 𝗣𝗿𝗲𝗷𝘂𝗱𝗶𝗰𝗲” 𝗢𝗳𝗳𝗲𝗿?

A WP offer is a legally protected communication used in settlement discussions. It allows parties to make concessions without fear they will later be used as evidence in court or Alternative Dispute Resolution (ADR) methods, such as mediation. For this protection to apply, the offer must:
• 𝘽𝙚 𝙜𝙚𝙣𝙪𝙞𝙣𝙚: It must reflect a sincere attempt to resolve a dispute.
• 𝘽𝙚 𝙡𝙖𝙗𝙚𝙡𝙡𝙚𝙙 𝙖𝙥𝙥𝙧𝙤𝙥𝙧𝙞𝙖𝙩𝙚𝙡𝙮: Clearly state it is “without prejudice.”

𝗝𝘂𝗿𝗶𝘀𝗱𝗶𝗰𝘁𝗶𝗼𝗻𝗮𝗹 𝗗𝗶𝗳𝗳𝗲𝗿𝗲𝗻𝗰𝗲𝘀

In the UK, WP offers are inadmissible in court or ADR proceedings if they genuinely aim to settle disputes.

Key Case Example:
Rush & Tompkins Ltd v Greater London Council [1989]: WP communications were ruled inadmissible, promoting candid settlement talks.

In the Middle East, WP offers do not have the same effect. Settlement discussions, including concessions, are admissible in court. Negotiators must proceed cautiously, as any agreement may be enforced.

𝗪𝗵𝗲𝗻 𝗦𝗵𝗼𝘂𝗹𝗱 𝗪𝗣 𝗢𝗳𝗳𝗲𝗿𝘀 𝗕𝗲 𝗠𝗮𝗱𝗲?

WP offers are not limited to the project’s conclusion. Use them:
Mid-Project: To address variations, delays, or disputes.
Post-Completion: To resolve unsettled claims efficiently.
Early WP offers often save time, costs, and relationships.

WP offer:

• Encourage frank discussions by providing a safe negotiation space.

• Save costs by avoiding prolonged disputes.

• Preserve relationships by promoting collaboration.

𝘾𝙖𝙡𝙙𝙚𝙧𝙗𝙖𝙣𝙠 𝙊𝙛𝙛𝙚𝙧𝙨: A variation, “without prejudice save as to costs,” adds strategic leverage by allowing cost arguments if the offer is rejected.

𝗞𝗲𝘆 𝗗𝗼’𝘀 𝗮𝗻𝗱 𝗗𝗼𝗻’𝘁𝘀
𝘿𝙤’𝙨:

• Clearly label settlement communications as “without prejudice.”
• Use them early to prevent escalation.
• Tailor strategies to the legal framework of the jurisdiction.

𝘿𝙤𝙣’𝙩𝙨:

• Assume WP protection applies globally.
• Use WP to shield improper behaviour.
• Wait until the project ends to address disputes.

𝗧𝗮𝗸𝗲𝗮𝘄𝗮𝘆: 𝗜𝘁’𝘀 𝗔𝗯𝗼𝘂𝘁 𝗕𝘂𝘀𝗶𝗻𝗲𝘀𝘀

Disputes are unavoidable, but resolving them efficiently is critical. WP offers are invaluable in the UK for fostering open, solution-focused dialogue. However, in regions like the Middle East, negotiation strategies must reflect local practices.