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This is a phrase which can be used to safeguard correspondence in which provisional
offers are made which are tentative, and which may need to be withdrawn later
depending upon how negotiations proceed. In this way they differ from any ‘subject
to contract’ offer which remains on the record, although neither party
is committed by such negotiation. ‘Without prejudice’ offers are probing
suggestions for matters yet to be settled during the ongoing negotiation. If they
are later withdrawn they may not be quoted in future negotiations nor used as
evidence in any court proceedings.
The phrase is used more particularly
in tenancy negotiations, regarding future rent levels, etc., although it can arise
in leasehold negotiations with the landlord, or whoever has to give consent to
any assignment.
There are also a few circumstances when the use of ‘Without
Prejudice’ can adversely affect the position, for example, where any formal
notice required to comply with the specified time-table would not be legally valid,
if it were only made in ‘without prejudice’ correspondence.
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