What does "without prejudice" mean in my work accident claim?

"Without prejudice" is a label. It is written at the top of a letter, spoken at the start of a meeting, or noted on an offer, and it changes how that communication can later be used. In the context of a work accident claim, it is one of the most important pieces of legal shorthand you will come across, because it is the mechanism that allows both sides to talk seriously about settlement without either of them having to worry that their words will be turned into evidence against them if the case does not end up settling.

The idea behind the label

Personal injury claims are adversarial. Each side is trying to establish its position — that the employer is or is not liable, that the injuries are more or less serious, that the losses are or are not recoverable. At the same time, almost every case is expected by the court to be capable of settling without a full trial, and the rules actively encourage the parties to try.

The tension between those two things — arguing your position robustly on the one hand and exploring settlement openly on the other — is what "without prejudice" is designed to resolve. The label means, in essence:

• We are having this conversation, or writing this letter, in a genuine attempt to settle the dispute.
• Nothing said or written in this exchange can generally be shown to the court as evidence if the case does not settle and ends up being decided at trial.
• Both sides are therefore free to make concessions, float figures, or acknowledge weaknesses in their own case, without that being used against them later.

Without that protection, no sensible party would ever put a genuine settlement figure on the table. Any figure a defendant proposed would look like an admission of liability; any figure a claimant accepted informally would look like an acceptance that the true value was that low. "Without prejudice" removes that risk and lets the negotiation actually happen.

What "without prejudice" covers

The label applies to a broad range of communications that are genuinely aimed at settlement:

• Offer letters from either side proposing a figure to conclude the claim.
• Round-table meetings or "settlement meetings" convened specifically to try to resolve the case.
• Telephone discussions between solicitors exploring settlement.
• Formal mediation sessions with an independent mediator.

The protection is not automatic just because someone writes the words "without prejudice" at the top of a document. What matters is the substance: the communication must be part of a genuine attempt to settle a real dispute. Correspondence dressed up as "without prejudice" but which does not actually engage with settlement — for example, an insulting response to an offer that makes no counter-proposal — may not carry the protection.

Equally, the label cannot be used to hide something that would otherwise be improper. Clear, unambiguous admissions of dishonesty, threats, or unlawful conduct do not become inadmissible just because the surrounding letter is marked "without prejudice".

The variant: "without prejudice save as to costs"

There is an important variation on the basic label. An offer or letter can be marked "without prejudice save as to costs", sometimes shortened to "WPSAC" or referred to as a Calderbank offer.

What this does is:

• Keeps the communication protected from the court's view during the substantive decision on liability and damages, exactly like a normal without prejudice letter.
• But allows the letter to be shown to the court after judgment, when the court is deciding who pays the costs.

That distinction matters because costs in civil litigation follow rational lines: a party who unreasonably refuses a sensible offer, and then does worse at trial, will usually be penalised in the costs order. A letter marked "without prejudice save as to costs" lets the party making the offer say to the court, after the trial, "we offered £X on this date, they refused, and they have now recovered less than that — we should therefore not be paying their costs from that point onwards."

This is the mechanism that puts real commercial pressure on the other side to accept a fair offer, and it is why offers of this kind are taken seriously by both claimants and insurers.

How this fits with Part 36 offers

The most formal type of settlement offer in civil litigation is a Part 36 offer under Part 36 of the Civil Procedure Rules. Part 36 offers have their own strict formal requirements and their own automatic costs consequences if they are not accepted and the party making the offer does at least as well at trial. See the detailed guide on Part 36 offers for how those rules work.

Part 36 offers and "without prejudice save as to costs" letters overlap but are not identical. A Part 36 offer must comply with the specific requirements of Part 36 to attract its automatic costs consequences. A "without prejudice save as to costs" (Calderbank) letter is a more flexible tool that the court can take into account on costs even where the strict Part 36 requirements are not met. In practice, most formal offers in personal injury claims are made under Part 36 to secure the tighter costs protection, with less formal without prejudice discussions running alongside.

Practical implications for your claim

For someone bringing a workplace injury claim, the practical takeaways are simple:

• Anything you or your solicitor put in writing to the other side should be labelled correctly. Open correspondence (marked "open" or unlabelled) can be shown to the court. "Without prejudice" correspondence generally cannot. Your solicitor manages this on your behalf.
• Do not treat "without prejudice" as a licence to say anything. The protection is real but not unlimited. Serious admissions of dishonesty are not covered by it. Your solicitor will guide what should and should not go into settlement discussions.
• Take without prejudice offers seriously. A "without prejudice save as to costs" offer or a Part 36 offer from an insurer is not a starting bid to be waved away. Refusing a reasonable offer can have real costs consequences later if the case does not do better at trial. Decisions on whether to accept an offer should always be taken with proper legal advice and, ideally, once the medical prognosis is stable.
• Do not use the label to game the system. Marking your own letters "without prejudice" while conducting an argument about liability does not make those arguments disappear if the case goes to trial.

Where it sits in the process

Without prejudice discussions typically become active once liability has been investigated and there is enough medical evidence for the claim to be valued sensibly. Before that stage, offers are usually premature. After that stage, they can move a case towards settlement quickly. For a fuller picture of when negotiation typically happens, see how a work accident claim works.