settlement new-zealand
Without Prejudice section of a letter
<p>I believe I have a good understanding of the meaning and implications of using the words "without prejudice" in a document which you may want to show in court.</p>

<p>To date, when I have offered a settlement it has always been on a separate document which I make mention of in my notice,  however I now find myself dealing with a person who does not have a good grasp of English. I need to send them a notice (while trying not to upset them) and am trying to keep things as simple as possible as a result.</p>

<p>What would the likely implication to the admissibility of writing a letter, and then adding a paragraph to the end - in brackets, starting with the words "(Without prejudice, ...) " followed by things I'm willing to do to help them be?</p>

<p>The issue I'm trying to resolve is that a tenant is in breach of an agreement because of how and where they are dumping inorganic waste. I simply want it removed, although doing this will be a big job for the tenant - I'm quite happy for the tenant to use my tractor to help move the waste and to arrange extra empties of my tip for him, but don't want this to be construed as changing our agreement or binding me to continue to allow him to use my tip in the future.</p>

<p>You believe wrong - that is not what without prejudice means and it won't do what you want.</p>

<p><strong>Without prejudice</strong> only has meaning within the context of an effort to negotiate the resolution of a dispute. So far, so good, you have a dispute and are trying to negotiate a resolution: this letter can be marked without prejudice. What it means is that this letter cannot be used as evidence of concessions made by you if you (or they) ultimately take legal action unless you both waive your without prejudice right. A document that simply asserts your rights and makes no concessions is not without prejudice even if it is marked as such. A mixed document can be without prejudice as to the concessions but still admissible as to the assertions.</p>

<p>However, let's assume that you resolve your dispute along the lines you suggest: you provide a tractor and empties gratis and it all gets sorted out. The fact that there was an agreement and its terms is not and cannot be without prejudice. If you wind up in dispute in the future and the tenant seeks to resolve it on the same terms and you can't or won't then they can point to the fact that you waived your rights previously and that they have an expectation that this was a permanent waiver.</p>

<p>Don't overthink this: just put in your letter where you make the offer that this is a one time thing and you are not waiving your rights now or in the future.</p>
