Without prejudice save as to costs — the label that protects your settlement offers

REVIEWED BY: Sean McNamara on 2026-08-30

"Without prejudice" is one of the most-used — and most-misused — phrases in family litigation. Done properly, it lets you make settlement offers and admissions that the judge cannot see at trial. This guide explains what the label does, when it doesn't work, and the special costs rules that make offers genuinely risky to refuse. It is general information, not legal advice.

What "without prejudice" (WP) does

Communications marked "without prejudice" — letters, emails, meeting notes — are inadmissible in the proceedings if settlement fails. The rule's purpose is candour: parties must be able to negotiate openly, concede weak points, and propose compromises without fear those concessions will be waved at them in court later.

A WP letter can say "I'll accept £40,000, though I think I'm owed £70,000" — and if negotiation fails, the judge at the final hearing will not see that sentence
The protection belongs to both parties: their responses are equally protected
The protection survives even if the letter isn't marked WP, where it's genuinely a settlement communication — but marking it is best practice and avoids disputes

"Without prejudice save as to costs" — the hybrid

This is the wording that gives settlement offers their teeth:

The communication is protected until costs are decided
If the case settles, no one sees it. If it doesn't settle, the judge who decides costs can see it — and can reward the party who made a sensible offer by penalising the refuser
In family finance cases, the equivalent formal mechanism is the open offer plus "calderbank" style offers or Form H / costs budgeting — the principle is the same: reject a generous offer, lose at trial, and pay the price on costs

What breaks the protection

The without prejudice rule is a substantive legal rule, not magic words. It does not protect:

Evidence of dishonesty or fraud in a negotiation ("I never signed that" when you did)
Impropriety, perjury, blackmail or threats in a WP communication
Bullying or intimidation — WP cannot cloak abusive conduct
Communications that are not genuinely about settlement — a WP letter that merely asserts your case with no element of compromise gets no protection
A concluded settlement — if WP negotiations produce a final agreement, that agreement is enforceable; it's no longer secret

WP meetings in family cases

Parties can agree to hold a without prejudice meeting (sometimes with the judge in the FDR context, where the FDR itself is without prejudice by rule) to talk settlement
The FDR (financial dispute resolution appointment) is entirely without prejudice: what the FDR judge says, and any offers made there, cannot be used by the trial judge
Position statements for FDRs are often marked "without prejudice save as to costs"

Practical guidance for litigants in person

1. Label genuinely settlement communications "WITHOUT PREJUDICE SAVE AS TO COSTS" when making offers during litigation 2. Keep normal correspondence separate — requests for documents, procedural queries and case updates should NOT be marked WP; misusing the label on ordinary letters undermines your credibility and can get the letters admitted anyway 3. Make real offers, in writing, on the record — a sensible offer you can later show to the costs judge is one of the most powerful tools a LiP has in financial cases 4. Don't admit facts in WP letters that you'd hate a judge to see — and remember the exceptions: dishonesty and impropriety pierce the shield 5. FDR offers are free-form — use the protection to test realistic numbers

Interaction with mediation

Mediation is confidential and without prejudice by contract and by law (with narrow exceptions, e.g. safeguarding). What's said in mediation cannot be deployed in court — this is one of its core attractions. See our mediation guides.

Official links

YourFamilyCase.co.uk is an independent information directory — we are not affiliated with, endorsed by, or connected to HMCTS or gov.uk. This page is general information and is not legal advice. The WP rule has technical edges — get advice before relying on it for anything significant.

Content verified against the official HMCTS court directory, gov.uk forms and fees pages, and the professional body registers (SRA, FMC, Bar Council). Last reviewed September 2026.