As a personal injury lawyer in Vancouver since 1995 I have negotiated with the Insurance Corporation of British Columbia, ICBC,  for injury claimants on practically every type of car accident injury. One thing is common, genuine settlement negotiations are always “without prejudice”. What does without prejudice mean? This is the topic of today’s article.  Also watch my short video about ICBC offers to settle without prejudice.  
The legal concept of “without prejudice” falls within the scope of the law of evidence which relates to what ICBC and injury claimants are allowed to say and the documents they can rely on at trial. The term “without prejudice” is often a shorthand to notify the reader of an offer that if settlement cannot be reached these offers are not to be held against the one making the offer in a court of law. This principle is supposed to promote settlements and reconciliations without recourse to the courts.  
How much money is offered to an injury claimant by ICBC, the amount, and the terms cannot be used at the personal injury trial on the basis of the without prejudice doctrine. This applies to cases worth less than $25,000 as well as cases worth more including personal injury claims valued at more than $100,000.  
Also, the BC Civil Rules state the fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the proceeding, until all issues in the proceeding, other than costs, have been determined. This only applies to offers that comply with the offer to settle rule.   

As a litigant you need to be careful however when you are making an offer to ICBC or another insurance company that it is truly a without prejudice offer. The mere use of the words on the front of a document does not prove that the document is indeed for the purposes of promoting settlement. The privilege of not having to disclose to the Court an offer is more a matter of substance rather than form. Please talk to a lawyer before and not after an offer is made as this could end your case before it even gets started.
Threats  of perjury and attempts to bride witnesses to defeat or promote a claim are not protected under without prejudice doctrine. The rule of privilege for “without prejudice” settlement discussions was never intended to give protection to this sort of unambiguous impropriety (Greenwood v. Fitts(1961), 29 D.L.R. (2d) 260 (B.C. C.A.), at 269.). Also information contained in a without prejudice letter that is superfluous to the offer that can be used to prove or disprove a material fact at trial may not be covered under this privilege.


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