Should I make or accept a without prejudice injury claim offer - What are the risks?

Accepting a 'without prejudice' offer is often a straightforward way to conclude a personal injury claim. But what are the consequences of accepting such an offer?

What is the pre-action protocol?

Most personal injury claims follow a pre-action protocol that is designed to speed up claims, avoid court action where possible, and reduce costs for all parties.

The first step in the protocol is for your solicitor to send a detailed ‘letter of claim' to the defendant and their insurance company.

The defendant, or their insurer, then has three months to either accept or deny liability. If they accept liability, negotiations for a settlement can begin. If the insurer denies liability, further action can be taken.

At any stage in the proceedings, the insurer may decide to make a ‘without prejudice offer'.

What is a ‘without prejudice offer'?

A ‘without prejudice offer' is when an insurer offers to settle a claim without formally accepting liability for your injury or illness.

A without prejudice offer signals a willingness to co-operate and reach a financial settlement without further legal proceedings.

Any negotiations that take place as a genuine attempt to settle a claim are implicitly ‘without prejudice'. However, it is preferable for any correspondence to be marked as 'without prejudice', and to seek clarification from the defendant that proceedings are on a without prejudice basis before a call or meeting.

A ‘without prejudice' offer cannot be used in court proceedings as evidence that the defendant admitted liability. The exception to this restriction would be where a without prejudice offer is not considered to be a genuine attempt to resolve a dispute.

How do without prejudice offers work in practice?

Correspondence regarding without prejudice offers often involves opening up two lines of communication:

• the official position of the defendant, which can be presented to the court in a subsequent hearing.
• the without prejudice or ‘off the record' position where the dispute can be discussed frankly and settlement options agreed.

Should I accept a without prejudice offer?

Accepting an offer

The decision to settle and avoid further proceedings will be desirable to many claimants.

In many cases, claimants need immediate compensation to cover medical treatments and living costs. You may be less concerned about an admission of liability or an apology from the defendant. If you think that the settlement amount proposed in a without prejudice offer is fair, accepting it may be the best option.

If an offer to settle ‘without prejudice' is accepted, this will bring your claim to an end.

The offer will usually be referred to as a ‘full and final settlement. This means the amount offered covers the whole claim. If your injuries subsequently worsen after acceptance of the offer, you cannot make another claim for further damages or losses.

Declining an offer

Accepting a without prejudice offer may not be the best course of action. The proposed settlement may not be enough to fully compensate you for your pain, suffering, and any costs or losses resulting from your injury.

You may also be seeking an acknowledgement of liability or an apology from the defendant. A without prejudice offer will not satisfy this requirement.

There is also some risk involved in refusing a without prejudice offer. By refusing an offer, it does not mean that your claim will be successful in court.

The insurer and defendant have not admitted liability - and the ‘without prejudice offer' cannot be used as evidence of admission of liability.

In making a without prejudice offer, it does not necessarily mean that the insurance company feels they have a weak defence. Offers are sometimes made simply to avoid future legal costs - regardless of the strength of the case.

See also:

Should I accept a pre-medical offer?

When is the best time to accept a compensation offer?

Should I accept the offer?

If you have received a ‘without prejudice' settlement offer, it is recommended that you speak to a personal injury solicitor before making a decision.

It is particularly important that a medical examination is carried out before attempting to assess what level of compensation is appropriate for your injuries.

Your solicitor can advise you on the best course of action, based on the evidence, your medical assessment and the solicitor's experience in negotiating with specific insurers.

See also:

How much compensation can I claim?

How did your injury happen?

Claiming compensation depends on the circumstances of your injury. Click the icons below for read more:

Work accidents Public places Road accidents Medical negligence Other accidents

Author:
Howard Willis, Personal injury solicitor

About the author

Howard Willis qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.