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It has become an accepted practice that when parties attempt a settlement they would mark the written negotiations “without prejudice”. The law promotes and protects parties who wish to settle their dispute out of court and therefore affords any negotiations marked “without prejudice” privilege. The words “without prejudice” is an indication that the writer of the letter intends to invoke abovementioned privilege in respect on the content of the letter.
As such the parties could without fear make concessions or admission to reach a settlement the negotiations marked without prejudice will be inadmissible as evidence should the parties not reach a settlement and proceed to court.
In order for the privilege to apply to the contents of a letter, all of the following aspects need to be present in the letter or communication:
- a dispute;
- an admission or statement;
- course of settlement negotiations; and
- a genuine attempt to settle the dispute.
The privilege can even apply to further communications not marked without prejudice. The further communications will only be privilege if it forms part of the settlement negations. The opposite is also true as any statement made which does not form part of the settlement negotiation could become admissible evidence.
It is important to seek the assistance of an attorney when negotiating a settlement to ensure that statements you make does not get used against you in court.
Anye Jansen van Rensburg, SchoemanLaw Inc (Cape Town)
Tel: +27 (0) 21 425 5604
Email : firstname.lastname@example.org