THE PROBLEMS OF WITHOUT PREJUDICE

Abstract

Despite a legal history beginning before 1760 and despite continuous and frequent everyday use since then, there are many problems and uncertainties and some hidden dangers associated with without prejudice communications and with the rule that would exclude such communications from evidence. The rationale, the elements of the rule of evidence, the exceptions, and the nature of without prejudice communications outside of the law of evidence are not well understood. This article examines the theory and the law about without prejudice communications in detail and suggests some ways to solve the problems and reduce the dangers.