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What are Without Prejudice Offers and why are they important?

Without prejudice offers are commonly made in relation to financial matters on divorce, although can be made in other types of proceedings as well.

A without prejudice offer is simply an offer, usually made in writing, that is simply marked ‘without prejudice’ towards the top of the letter.  The effect of a without prejudice offer is that it means that if the matter proceeds to Court then the offer cannot be placed before a Judge at the final hearing. Negotiations in person or by telephone can also be made without prejudice by expressly stating this at the start of the discussions. Certain discussions or letters can be implied to be without prejudice depending on their contents, but it is always sensible to expressly state whether an offer is intended to be without prejudice in order to avoid any uncertainty.

The purpose of without prejudice offers and negotiations is that it enables parties to make concessions and put forward generous offers during discussions in a genuine attempt to settle matters without risking compromising their position in the event of the matter proceeding to Court.

Without prejudice offers can be extremely useful in trying to settle matters and avoiding the need for a final hearing. Open offers, which are offers not marked ‘without prejudice’ can also be useful however on the basis that the receiving party knows that they can be placed before a judge at any final hearing. This can place pressure on the receiving party to consider the offer very carefully. Settling a case is often achieved by making a variety of without prejudice and open offers and there may be important reasons for making a particular offer either open or without prejudice. Consideration will also need to be given as to the timing of such offers taking into account the stage reached in any court proceedings.

Given the above, it is often highly beneficial to seek early advice from a family solicitor prior to making any offers of settlement.

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