Without Prejudice in Singapore: What It Protects in Settlement Talks, and What It Does Not
You are owed money, or you are being chased for it, and both sides would rather settle than go to court. The problem is that every offer feels like a concession. If you say you would accept S$30,000 on a S$50,000 claim, can the other side later tell the judge you admitted the claim was worth less? The “without prejudice” rule exists to answer that question. Used properly, it lets you negotiate freely. Used carelessly, it protects less than people assume.
This is general information, not legal advice. Whether a particular letter or conversation is protected depends on its contents and the circumstances in which it was made.
What Does “Without Prejudice” Mean?
It means that what you say in a genuine attempt to settle a dispute generally cannot be used as evidence against you if the dispute goes to court. The rule has 2 sources in Singapore.
The first is statutory. Section 23(1) of the Evidence Act 1893 provides that, in civil cases, an admission is not relevant if it is made on an express condition that evidence of it is not to be given, or in circumstances from which the court can infer that the parties agreed evidence of it should not be given.
The second is the common law privilege. In Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd [2006] 4 SLR(R) 807, the Court of Appeal explained that the privilege rests on 2 foundations: the public policy of encouraging parties to settle their disputes out of court, and an implied agreement between the negotiating parties.
When Does the Protection Apply?
Singapore courts look for 2 things. The High Court summarised them in Hall, Jonathan Stuart v Rapyd Pte Ltd [2024] SGHC 49, following the Court of Appeal:
- There must be a real dispute. The privilege protects attempts to compromise a dispute. It does not protect correspondence where no dispute exists.
- The communication must be part of negotiations to settle it. Offers, counter-offers and the statements made to support them are the core of what is covered.
The label matters less than people think. The courts have held that a communication can be protected even though it was not marked “without prejudice”, because what counts is whether it was made in the course of genuine settlement negotiations. The reverse also holds. Writing “without prejudice” on a letter that is not a genuine attempt to settle does not make it privileged.
What “Without Prejudice” Does Not Protect
Paying a debt you do not dispute
In Mariwu, the Court of Appeal cited with approval an English decision declining to apply the privilege to a letter that only discussed repaying an admitted liability, rather than negotiating a disputed one. If you owe the money and your letter is really about when you will pay, the label may not help you.
A clear admission of liability
In Hall v Rapyd, the High Court confirmed that the privilege does not apply where there is a clear and unequivocal admission of liability. Once one side has, in substance, surrendered on liability, there is no negotiation left to protect.
Abuse of the occasion
The courts will set the privilege aside only in narrow cases. Hall v Rapyd referred to the requirement of “unambiguous impropriety” before an exception of that kind applies, and said that where the position is unclear the court should err on the side of protecting the privilege. It is not a gap to plan around.
A deal you have actually reached
If negotiations succeed, record the terms in a signed, open settlement agreement. Do not leave the only record of the deal inside a chain of letters marked “without prejudice”, where the terms may be argued over later.
Without Prejudice and the Rules of Court 2021
Since 1 April 2022, the court rules expect you to try settlement. Under Order 5 of the Rules of Court 2021, a party has a duty to consider amicable resolution before and during a case, and is to make an offer of amicable resolution before commencing an action unless it has reasonable grounds not to. The offer must be in writing and, unless the parties agree otherwise, open for at least 14 days.
The rules build in their own protection. Under Order 5, Rule 2(3), the terms of an offer that was made and not accepted must not be relied on or made known to the court until it has decided the merits and is dealing with costs. At that stage, Order 21 requires the court to consider the parties’ efforts at amicable resolution. Lawyers often mark such offers “without prejudice save as to costs” to make the same point expressly: the offer stays out of the trial on liability, but can be shown to the court when costs are argued.
The practical effect is that a reasonable offer does double work. It may settle the case. If it does not, it can later protect you on costs against an opponent who refused it without good reason. Our guide to what changed under the Rules of Court 2021 covers the costs rules in more detail.
Letters of Demand: Open or Without Prejudice?
A letter of demand is usually sent open, and for good reason. You want the court to be able to see that you demanded payment, what you demanded, and when. That record supports your claim, your claim for interest, and your position on costs.
Offers to accept less than the full amount are different. They generally belong in a separate letter, marked “without prejudice” or “without prejudice save as to costs”, so that your open position stays at the full amount. Mixing the 2 in one letter invites an argument about which parts are protected.
A typical sequence looks like this:
- An open letter of demand setting out the claim, the amount and a deadline.
- A separate without prejudice offer, if you are prepared to compromise, stating how long it stays open.
- Without prejudice meetings or calls to negotiate, with a short written note of what was proposed.
- If terms are agreed, an open, signed settlement agreement recording them, including what happens on default.
- If not, proceedings, with the unaccepted offers kept for the costs stage.
Our guide on writing and sending a letter of demand covers the first step in more detail.
Mediation Is Protected Separately
If the dispute goes to mediation, the Mediation Act 2017 adds its own layer. Section 9 restricts disclosure of mediation communications to third parties, and section 10 restricts their admission in evidence. A court or arbitral tribunal can give permission under section 11 only after weighing factors including the public interest and the interests of the administration of justice.
Common Mistakes
- Marking everything “without prejudice”. Your open demand and your evidence of the claim then become harder to use.
- Putting admissions in a letter that is not a real negotiation. The label will not save a letter that simply confirms you owe the money.
- Negotiating by phone with no note. If there is later a dispute about whether a conversation was a settlement discussion, a short contemporaneous note helps.
- Leaving an offer open indefinitely. State how long it is open. Under the Rules of Court 2021, an offer with no expiry date generally lapses once the court decides the merits.
- Settling without an open agreement. A signed agreement with a default clause is what you enforce if payments stop.
Frequently asked questions
What does “without prejudice” mean in Singapore?
It means statements made in a genuine attempt to settle a dispute generally cannot be used as evidence against the maker if the dispute goes to court. The protection comes from section 23 of the Evidence Act 1893 and the common law privilege, which rests on the public policy of encouraging settlement.
Does a letter have to be marked “without prejudice” to be protected?
No. Singapore courts have held that communications made in genuine negotiations to settle a dispute can be protected without the label. Equally, the label does not protect a letter that is not a genuine attempt to settle, such as one that only confirms an undisputed debt.
What does “without prejudice save as to costs” mean?
The offer cannot be shown to the court while it decides who wins, but either party can put it before the court when costs are decided. Under the Rules of Court 2021, unaccepted offers of amicable resolution are kept from the court until the costs stage.
Can a without prejudice admission ever be used against me?
In limited cases. The privilege does not apply where there is no real dispute, and Singapore courts have held that a clear and unequivocal admission of liability is not protected. Exceptions for abuse of the privilege require unambiguous impropriety.
Should a letter of demand be marked “without prejudice”?
Usually not. A letter of demand is normally sent open so the court can see what was demanded and when. Any offer to accept less is better made in a separate without prejudice letter, so your open position stays at the full amount.
Are mediation discussions confidential?
Yes, in general. The Mediation Act 2017 restricts disclosing mediation communications to third parties and admitting them in evidence, unless an exception applies or a court or arbitral tribunal gives permission.
Speak with our dispute resolution team
We draft letters of demand and without prejudice offers, run settlement negotiations and mediations, and record settlements so they can be enforced if the other side defaults. Read more about our letter of demand service. If you have received an offer or are about to make one, send us the correspondence so far and we will tell you what is protected and what is not.
Call (65) 6557 0215 or email contactus@dllclegal.com. We typically respond within minutes during business hours.
This article is general information about without prejudice communications in Singapore and is not legal advice. Whether a communication is protected depends on its facts, and the law develops through new decisions, so confirm the current position on Singapore Statutes Online, with the Singapore Courts, or with a lawyer before acting. For advice on your specific matter, consult an Advocate & Solicitor.
Statutory and case references: Evidence Act 1893, section 23; Rules of Court 2021 (S 914/2021), Order 5 Rules 1 and 2, Order 21 Rule 2; Mediation Act 2017, sections 9 to 11; Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd [2006] 4 SLR(R) 807; Hall, Jonathan Stuart v Rapyd Pte Ltd [2024] SGHC 49.