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The privileged few

Practitioners and litigants must take ADR and the CPR into account before using without prejudice privilege, or face costs, says Katherine Awadalla

17 January 2003

The principle of without prejudice privilege (WPP) is trite law. However, its application in the current evolution of civil litigation procedure can present difficulties. Mistakes are made when the ‘without prejudice’ label is used inappropriately or ‘privileged’ correspondence is wrongly excluded from evidence. Such mistakes can be avoided by considering the background and rationale for the privilege (and its exceptions) and, more importantly, its function in the context of 21st century litigation. Background WPP attaches to documents created for the purposes of genuinely attempting to compromise or resolve disputes between opposing parties. The question of whether a document is privileged is one of substance, not form. Simply using a ‘without prejudice’ label will not protect a document from production in open court for proof of the admissions it contains, unless it is also clear from the surrounding circumstances that the parties are genuinely seekin...

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