Heading letters in conveyancing transactions ‘without prejudice’

The Conveyancing Committee has been asked to express a view as to the significance of correspondence passing between solicitors during the negotiation of contracts for the sale of land being headed ‘without prejudice’ in addition to, or in substitution for, ‘subject to contract’.

Correspondence between parties to a dispute, which is entered into with a view to settling the dispute, is regarded as being made without prejudice and cannot normally be opened to a court dealing with the dispute. The mere use of the words does not mean that the correspondence must automatically be regarded as being without prejudice – the court will always reserve the right to examine the correspondence to see it was genuinely entered into with a view to settling the dispute.

The committee cannot see any justification for the use of the words ‘without prejudice’ in the heading of correspondence between solicitors engaged in the negotiation of a contract for the sale of land, and believes that the use of such words is mistaken and will not confer any benefits on the parties whose solicitors are using them. The committee recommends that solicitors should cease using such words in correspondence leading to the creation of a contract.

The committee is aware that some solicitors have been adding the words ‘without prejudice’ to their replies to pre-contract enquiries. This is entirely inappropriate. A prospective purchaser is entitled to get clear and unequivocal replies from the prospective vendor to such enquiries.