The recent case of Morris v Williams [2025] EWHC 218 (KB) gives us a valuable lesson in legal letter writing. Spoiler alert – just simply putting "without prejudice – save as to costs" on a letter doesn't guarantee its contents are off-limits in court.

What Was the Case About?

This case started with a road traffic collision. The defendant accused the claimant of being fundamentally dishonest.

The claimant’s solicitors sent a letter to the defendant labelled "without prejudice – save as to costs." This letter included a Calderbank offer, which is a type of settlement offer. Here’s the gist of the offer:

• The claimant would pay the defendant some money.
• The claimant would admit they were fundamentally dishonest about parts of their claim.
• The admission would be kept secret through a non-disclosure agreement (NDA). The case couldn’t be discussed or shared with anyone.

Sounds straightforward, right? Not quite.

What Did the Defendant Do?

The defendant refused the offer and decided to try to use the letter against the claimant in the litigation. The defendant argued that the letter crossed a legal line into something called "unambiguous impropriety"—which is legal speak for something so improper it loses the "without prejudice" protection.

Why did the defendant want the letter admitted as evidence? Because in the letter, the claimant openly admitted to fundamental dishonesty in parts of their case. The defendant argued this meant the claimant shouldn’t be allowed to keep disputing they were dishonest.

What Did the Court Decide?

After reviewing similar cases like Merrill Lynch v Raffa [2001] ILPr 31, the judge ruled in favour of the defendant.

The judge decided that the claimant’s admission in the letter was fundamentally dishonest and that this dishonesty crossed the line into "unambiguous impropriety." This meant that the letter was no longer protected under the "without prejudice" rule and could be used as evidence.

At paragraph [21], the judge said something particularly interesting:

“Here the line has been crossed. If the Letter is excluded there is more than a risk of the Claimant perjuring himself, which would not of itself be sufficient to bring the exception into play, but the certainty that the Claimant's pleaded case was being put forward on a (at least partly) false basis, which is sufficient to bring the exception into play. This is an example where the public policy arguments in favour of litigating disputes with full disclosure trump the policy argument in allowing parties to speak candidly and with protection of the contents of the discussions, to encourage settlements.”

Translation? The judge is saying, "Look, the claimant wasn’t just bending the truth—they were outright dishonest, and their case was partly built on false pretences. Because of that, the need for honesty and open disclosure in court takes priority over keeping settlement discussions protected under ‘without prejudice’ rules."

Key Takeaways from the Case

This case is an important reminder to be extra careful with how you word legal correspondence. Yes, "without prejudice" letters are meant to encourage settlement by allowing open discussion. But that protection has its limits, especially if the content crosses into improper territory like dishonesty.

Here’s what the claimant’s solicitors could have done differently:

• If they had kept the letter general, like highlighting that some claims might be hard to prove or that the court might not agree with every aspect of the injury case, the "without prejudice" protection would have likely stayed intact.
• But by outright admitting fundamental dishonesty, the solicitors handed the defendant a weapon to use against their client. Whoops!

The Bottom Line

Be cautious when drafting those "without prejudice" letters. Even with that magic phrase at the top, the content matters. Choose your words wisely—because if they’re not, the content could come back to bite you.

Legal disclaimer 

The matters contained within this article are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. 

Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. 

Before acting on any of the information contained herein, expert advice should always be sought. 

© Melissa Worth 2025