Without Prejudice Privilege: Principles, Case Law, and Exceptions

Without prejudice privilege protects settlement communications by making them inadmissible in later proceedings. It grew out of eighteenth-century English law and secured firm footing in Walker v Wilsher. The paper sets out three core criteria for the privilege: a genuine dispute, a real attempt to settle, and production solely for settlement purposes. It then examines key rulings—Rush & Tompkins, Oceanbulk Shipping & Trading, and Motorola Solutions v Hytera—to show how courts have shaped the scope of without prejudice privilege. Finally, it surveys the main exceptions, including unambiguous impropriety, concluded disputes, waiver, estoppel, and disclosures limited to costs. This framework guides practitioners in applying without prejudice privilege in arbitration and litigation.