By Funmilayo Olagunju

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Correspondence was basically communication in written form through letters. With the advent of electronic means of communication and the legal acceptance of electronic evidence, correspondence also includes electronic mail and text messages. The purpose of this piece is to explain the legal implication of a correspondence with a caption “Without prejudice.”

Black’s Law Dictionary 9th Edition at page 1740 defines the words “Without prejudice” as follows:- “Without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party.

See ACMEL NIGERIA LTD & ANOR v. FBN PLC & ORS (2014) LPELR-22444(CA)Per SAMUEL CHUKWUDUMEBI OSEJI, JCA (Pp 22 – 23 Paras G – A)

The legal effect of “Without prejudice” caption written on any correspondence is that such can not be tendered as evidence in Court against the maker. The rationale is to protect confidential communication made in furtherance of settlement and negotiation outside Court room.

The without prejudice rule is to encourage free communication between parties to a dispute without fear that such would become a weapon against them in Court by the opponent in the event that negotiations doesn’t succeed. Every litigant must pursue his/her interest fairly within the purview of Law.

Phipson: On Evidence (11th Edn.) put it thus at P.307 in para. 679. “Offers of compromise made expressly or impliedly “Without prejudice” cannot be given in evidence against a party as admissions., the law on grounds of public policy, protecting negotiation bonafide entered into for the settlement of dispute”

It is not every correspondence marked without prejudice that would serve as shield in Court.

(ii) If there is no negotiation or existing dispute sought to be settled among parties, the phrase “without prejudice” becomes superfluous.

(ii) When the correspondence sought to be tendered is a proof that the settlement reached is a product of fraud or crime, the document might be admissible.

(iii)When the overriding interest of justice and the circumstance of a case requires, the Court might admit a document marked without prejudice.

In the absence of any of the foregoing, the content of a document marked without prejudice remains confidential and inadmissible as evidence in the Court of Law.

“If you take your neighbor to court, do not betray another’s confidence” Proverbs 25:9 (NIV).