Should I accept a ‘without prejudice’ offer on my injury claim?

Not without legal advice. Accepting an early 'without prejudice' offer can be a way to quickly resolve a compensation claim.

However, there is a risk that you under-settle the claim and get less compensation than you would be entitled to receive.

What does 'without prejudice' mean?

If you have an accident at work and wish to make a personal injury claim, then you might receive a ‘without prejudice’ offer from your employer's solicitor or their insurance company.

The purpose of a without prejudice offer is to give both sides a chance to quickly settle a claim without compromising anyone's legal position or legal rights.

A 'without prejudice' offer cannot be used as evidence that the employer accepts liability for your accident.

How the negotiation process works

In the vast majority of cases, a settlement agreement is reached after negotiations between your solicitor and your employer's insurance company.

An agreement is usually reached towards the end of the formal claims process:

• The first step in the work injury claim process involves your solicitor sending a ‘letter of claim’ to your employer who will forward the letter to their insurer.
• The letter follows the initial stages of the claims process, called the ‘pre-action protocol’ and will contain the details of your injury.
• The insurer then has three months to either accept liability, in which case settlement negotiations can begin, or deny liability for the injury.
• If liability is denied, your solicitor will take further action, such as gathering additional evidence in support of your claim.

However, in parallel with the claim proceedings, the insurer may make a ‘without prejudice’ offer to settle your claim at any stage in the process.

How do I assess a ‘without prejudice’ offer?

A ‘without prejudice’ offer is a way of an insurer offering to settle a claim without formally admitting responsibility for the accident.

Such an offer shows that the insurer is willing to cooperate and compensate the victim without having to go through further legal proceedings. However, it does not necessarily mean that the insurer will admit liability if the case does go to court.

Most attempts to settle claims are implicitly offered ‘without prejudice’, although it is preferable for any correspondence to be marked explicitly ‘without prejudice’, or for this to be clarified before any further communication so all parties are clear during the negotiations.

Two positions

It may seem contradictory, but it is common for a defendant in a personal injury claim to have two ‘positions’:

• The official position, which would be presented in front of a court.
• The without prejudice (or off the record) position, which can allow for the dispute and settlement to be discussed frankly.

It is important to note that the offer of a ‘without prejudice’ settlement cannot be used in court as evidence that the defendant has admitted liability (unless the offer is not considered to be a genuine attempt to resolve the matter).

Should I accept a ‘without prejudice’ offer?

It depends on your situation. If you are offered a without prejudice compensation settlement, your solicitor will advise you on the pros and cons and advise on the best course of action. It is up to you whether to accept the offer.

Accepting the settlement offer

You are claiming compensation primarily for pain, suffering and loss of amenity and to cover any financial losses incurred as a result of your injury (e.g. treatment costs or loss of earnings).

Extracting an apology or admission of liability from your employer might not be your primary concern. As such, a reasonable ‘without prejudice’ offer may be satisfactory to bring the claim to a close, so you may choose to accept it.

Accepting the settlement will bring an end to the claim.

It is important to note that a ‘full and final settlement’ means no new claims can be made if your injury gets worse in the future.

Declining the settlement offer

You may choose to decline an offer if the compensation sum is not enough to cover your healthcare costs and other losses, and you wish to take the claim further in the hope of being awarded more money.

You may also choose to decline an offer if, in addition to compensation, you are seeking an apology or an admission of liability from your employer.

However, it is important to note that if you do not accept an offer, it does not necessarily mean that your case will be successful in court, as the without prejudice compensation offer cannot be used as ‘evidence’ that a company has admitted liability for an injury.

Insurance companies will often make a ‘without prejudice’ offer to try and avoid lengthy legal cases - making an offer does not necessarily mean that they believe they have a weak case or will be unsuccessful should the case go to court.

Can I make a without prejudice offer to my employer?

Yes. This approach is much less common, however. Your solicitor may suggest or agree to this if the extent of your injuries (and therefore the value of your claim) is known and they are familiar with the insurance company's approach.

You should discuss any offer with your solicitor and should let them draft the offer. If you do not make your 'without prejudice' offer correctly, there is a risk that you compromise your legal position.

What happens next?

Your solicitor will strive to make sure that the level of compensation offered is fair and appropriate in relation to your injuries, and they will ensure that a medical examination has taken place to establish this before any offer is accepted.

If your solicitor feels that they could achieve a better outcome for you by going through court proceedings, they will be able to advise and support you throughout this process.

Have you been injured at work?

If you have been injured at work in the last 3 years, you may be able to claim financial compensation.

Find out more about making a work accident claim:

• Do you qualify?
• How much compensation could you get?
• How does No Win, No Fee work?

Read more: Work accident claim guide