Introduction
Privilege, in legal terms, refers to a special right, exemption, or immunity granted to a person or class of persons, enabling them to lawfully do or refrain from doing something that would otherwise expose them to liability. Legal privilege seeks to protect certain communications and relationships from compulsory disclosure in court, thereby promoting fairness, candour, and effective dispute resolution.
Various forms of privilege exist under Ghanaian law. These include the privilege against self-incrimination, lawyer-client privilege, religious privilege, the right not to disclose an informant’s identity, marital communication privilege, and the compromise privilege—commonly known as the “without prejudice” privilege.
This article focuses on the without prejudice privilege, an essential tool in dispute resolution that facilitates open and honest settlement negotiations by insulating such discussions from later use in litigation. This legal protection plays a critical role in fostering out-of-court settlements and reducing the burden on the judicial system.
What is Without Prejudice Privilege?
The “without prejudice” privilege protects statements, admissions, or offers made in the context of settlement negotiations from being used as evidence in court. This shield encourages parties to engage in frank discussions without fear that concessions or proposals will later be used against them.
Under Evidence Act, 1975 (NRCD 323), this privilege applies across various proceedings—judicial, administrative, legislative, or informal. Its core purpose is to promote resolution over confrontation by allowing parties to explore compromise freely and sincerely.
Section 105 of the Evidence Act 1975 codifies the compromise privilege within Ghana’s legal framework. This provision permits a person to prevent the disclosure of any communication made during negotiations for compromise or settlement, provided that the communication was intended to be confidential. Notably, the privilege is considered joint in nature. This means both parties to the negotiation possess the right to invoke it, and neither party may waive the privilege without the express or implied consent of the other.
Conditions for Without Prejudice Privilege
For the privilege to apply, certain essential conditions must be met:
- Existence of Imminent or Threatened Litigation
There must be an actual or anticipated dispute that may culminate in a legal action if the parties do not settle. - Intention to Promote Settlement or Reconciliation
The communication must form part of a genuine effort to resolve the dispute or foster reconciliation. - Mutual Understanding Between Parties
Both parties must understand that the communication is made “without prejudice” and is intended to be privileged—used solely for the purpose of settlement and not admissible in court, even if it contains admissions of liability.
The Position of the Courts
The Ghanaian courts have upheld this principle where the conditions are clearly satisfied. In Dikyi & Others v Ameen Sangari Industries Limited [1992] 2 GLR 380, the court held that for the privilege to apply, both parties must mutually understand that discussions are to be treated as “without prejudice.” The term must not be used tactically or one-sidedly. It must reflect a shared intent to negotiate in good faith without sacrificing legal rights prematurely.
Further, the courts have long recognised the necessity of protecting genuine settlement discussions. In La Roche v Armstrong [1922] 1 KB 485, Lush J emphasised that if without prejudice protection did not exist, parties would hesitate to enter into candid negotiations, fearing any concession might later be used against them. The privilege is therefore indispensable to promoting dispute resolution and judicial efficiency.
Limitations and Misconceptions
Despite its clear importance, the without prejudice privilege is frequently misunderstood and misapplied. A common misconception is that merely marking a document or email as “Without Prejudice” is enough to guarantee that it will be privileged. However, courts may look beyond such labelling and assess the substance and context of the communication.
As held in South Shropshire District Council v Amos [1987] 1 All ER 340, a communication labelled “without prejudice” may still be admissible in court if it lacks the requisite intention to settle or is made outside the context of a genuine dispute. Conversely, even where a communication is not labelled, it may still attract privilege if it meets the legal criteria.
Illustrative Scenario:
Imagine a dispute between a landlord and tenant over unpaid rent. The landlord sends a letter proposing a payment plan and labels it “without prejudice.” However, the tenant had not yet contested the debt or shown any intention to litigate. Later, the landlord tries to rely on the tenant’s silence as proof of liability.
In this instance, the court may find that the privilege does not apply, because there was no genuine dispute at the time the letter was written, and the letter was not truly part of settlement negotiations. The label “without prejudice” is not a magic wand—it cannot manufacture privilege where the legal foundation is missing. As discussed in Law of Evidence in Ghana (Opoku-Agyemang, 2015, p. 479), such circumstances render the communication admissible, as they do not serve the policy rationale underlying the privilege.
Key Takeaways on Limitations:
- The privilege only protects communications made in the course of genuine negotiations.
- It cannot be used to shield threats, misconduct, or admissions made outside genuine settlement negotiations.
- Both parties must have a shared understanding of the privileged nature of the discussion.
- Communications made for ulterior motives—such as extracting admissions—may be excluded from protection.
Conclusion
The “without prejudice” privilege is a vital feature of Ghanaian evidence law, grounded in the principle that open and sincere settlement negotiations should be protected from later use in litigation. Properly understood and applied, it encourages parties to explore settlement without fear that their words will be turned against them. However, the privilege has its boundaries. Legal practitioners and parties must understand not just when it applies, but also when it does not.
For legal professionals, understanding the true scope and limitations of without prejudice privilege ensures better advice to clients and helps preserve the integrity of settlement processes. For parties in dispute, it provides a safe legal space to talk, compromise, and potentially resolve matters before the courtroom becomes inevitable.
By Fred Seth Thomas Mireku Jnr
Associate, Kusi-Appiah and Associates