During communication with an 'opponents' solicitor via e-mail or letter, is it presumed that all correspondence marked 'Without Prejudice' is part of the mediation process and none of it can ever be used as evidence?
If in doubt, be clear - does it contain some offer or is it part of a process of seeking a settlement. Adding the words 'without prejudice' helps but is not conclusive. The opposite is marking correspondence 'open'.
I remember years ago I got a few threatening e-mails from somebody claiming I'd libelled him, they were little else but rebuttle and complaints drafted by himself. But each time they were marked as 'Without Prejudice'. Would it still have applied?
No. It was all legal threats. To be honest some of what he said just reinforced the article id written. However I did write back with a solution that was agreed. I also wrote without prejudice thinking it had to be done that way. And it sounded big and clever.
When involved in legal or quasi-legal matters, many people feel that it is a requirement to throw everything they normally do out of the window and proceed in a way that they think lawyers will want to see.
I read a witness statement once which never said, ie, "I phoned Mr Smith and after the call I wrote him a letter to try and explain my point of view", because the guy wrote: "I then did telephone Mr Smith and after the call I did write to him a communication in which I attempted to explain my point of view". There were 70 pages of this (about two paragraphs actually addressed the question on which he could have succeeded in a claim).
Those sort of people think that all correspondence during a dispute should be headed 'Without prejudice'. They have no idea why - they don't even know what it means - but they saw it on a letter once.
Ah well. On the flip side, I received a letter from a solicitor once, terms of service, which read: "if you are not guilty of an offense then we would expect you to plead guilty." A typo, clearly, but as it was a standard form letter I assumed he'd been sending it out to a fair amount of people before I caught the mistake for him.