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SolicitorRM, Solicitor
Category: Property Law
Satisfied Customers: 3879
Experience:  Director and Principal Solicitor. UK
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ADR negotiations - are they always 'without prejudice'? What

Customer Question

ADR negotiations - are they always 'without prejudice'? What if you need to set out your case as part of a pre-action protocol. Should this be done by doing an 'open' letter before action that is not without prejudice save as to costs? I am considering applying for a court declaration of ultravires of a previous decision but I understand that a pre-action protocol must be carried out first. So far one of the other parties has sent a 'without prejudice' letter setting out his position and I replied 'without prejudice'. Do I need to do an open letter setting out fully my position and the remedies I want to show the pre-action protocol has been complied with or are will without prejudice letters be OK? Also will any correspondence which makes any mention of mediation be admissible in court or is this all 'without prejudice' and cannot be mentioned?
Submitted: 5 days ago.
Category: Property Law
Expert:  SolicitorRM replied 5 days ago.

Hi thank you for your enquiry and patience. Your letter of claim should not be without prejudice because if the ADR should fail you will not be able to attach the letter to your claim form. You only mark without prejudice if there is correspondence relating to some kind of compromise or offer to settle not any correspondence exchanged during pre-action stage. I hope this helps and I would be grateful for your rating at your earliest convenience

Customer: replied 5 days ago.
OK thanks. Proceedings were adjourned for ADR so there was a claim already although I am not sure if I need to make a second claim for the procedure I want to follow or if the judge will simply accommodate it at a directions hearing. Therefore, does the same still apply - that I need an open 'letter before action'? There was no time to do this prior as I had a two-week window to make an appeal within the CPR for the type of appeal I am doing.
Expert:  SolicitorRM replied 5 days ago.

Is the claim you want to raise part and parcel of the issues currently before the court and not completely different cause of action? If so then you should look to amend the current claim to include what you now need to be dealt with too. Try and agree with the other party for the new issue to be included, if they refuse then you can make an application to court to amend your claim. You do not need to do a letter before action if the issues are linked and same parties are involved. The adjournment is for ADR and if your correspondence is relating to compromise negotiations then yes mark it without prejudice.