The ink is not the law
A heading can communicate intention, but it does not automatically decide whether a document is admissible, privileged, confidential or binding. Courts usually care about substance, purpose, context and the applicable law—not the confidence with which somebody found Caps Lock.
Choose the label for the job the communication is actually doing. Do not mix an open procedural record and a settlement negotiation in the same letter if you can sensibly separate them.
The quick decision
Use OPEN or no special heading.
Consider WITHOUT PREJUDICE.
Consider WITHOUT PREJUDICE SAVE AS TO COSTS, with careful terms.
Use the court rule—not a homemade approximation in an expensive-looking font.
Open and ordinary correspondence
The letter may one day meet a judge. Dress accordingly.
What it usually means
The sender intends the communication to be available for reliance in the proceeding, including as evidence of what was requested, answered or proposed.
Use it when
You are correcting the record, requesting a procedural step, confirming an agreement, identifying non-compliance, or writing something you may need to show the court on the merits or conduct.
Do not use it when
The real purpose is a protected settlement negotiation that you do not want deployed on the merits.
Sometimes a letter is simply a letter. The stationery survives.
What it usually means
Ordinary correspondence. Its legal treatment depends on its content and context.
Use it when
The communication is routine and there is no realistic ambiguity about settlement privilege or confidentiality.
Do not use it when
A clear heading would help prevent confusion between simultaneous open and settlement correspondence.
Technically dressed; practically asking everyone what it wore.
What it usually means
People sometimes use it to mean the opposite of “without prejudice”—that the communication is open and may be relied upon.
Use it when
Usually, do not. In Australian legal correspondence, OPEN is generally clearer.
Do not use it when
You assume it gives the letter extra force or creates a special procedural category.
A tie has been placed on the email.
What it usually means
The sender considers the communication serious, authorised or part of an official process. By itself, it is not a standard privilege category.
Use it when
An organisation's procedure requires it, or you need to distinguish a final formal notice from informal discussion.
Do not use it when
You expect the word alone to make a demand binding, admissible, confidential or privileged.
Settlement labels
Section 131 of the NSW Evidence Act 1995 addresses communications and documents connected with attempts to negotiate settlement and contains exceptions. A genuine settlement communication may attract protection without the label; adding the label to an unrelated demand does not guarantee it.
A settlement room, not an invisibility cloak.
What it usually means
The communication is part of a genuine attempt to settle a dispute and is intended not to be used on the merits in the ordinary way.
Use it when
You are making or exploring a real settlement proposal, with concessions or discussion directed to resolving the dispute.
Do not use it when
You are serving evidence, making an ordinary demand, correcting an open record, or hiding statements you simply regret making.
SAVE AS TO COSTS
Not for the main event; possibly invited to the costs after-party.
What it usually means
The communication is intended to remain protected while the merits are decided, but may later be shown when the court considers costs.
Use it when
You are making a genuine settlement offer and want the recipient's response potentially considered on costs. The terms, timing and reasonableness matter.
Do not use it when
You have not clearly stated the offer, what resolves, the acceptance method, deadline, costs position and consequences.
A costs argument wearing sensible shoes and carrying receipts.
What it usually means
An offer made on a “without prejudice save as to costs” basis, intended to support a later discretionary costs argument if unreasonably rejected.
Use it when
You understand the proposed compromise, can state it precisely and have considered the time for acceptance and costs consequences.
Do not use it when
You are guessing at legal language or using the name as decoration. Get advice where possible.
This one has rules. The rules have subrules. Bring snacks.
What it usually means
A formal offer made under applicable court rules, potentially carrying specified costs consequences.
Use it when
You have checked the exact current rule for your court and can comply with its form, terms, timing, service and costs requirements.
Do not use it when
You merely want the phrase at the top of an informal proposal. A defective formal offer may not do the intended job.
Helpful signpost; not a force field.
What it usually means
The sender says the communication is directed to settlement. Its actual treatment still depends on substance and context.
Use it when
It accurately describes the communication and accompanies a genuine negotiation.
Do not use it when
You assume it is necessarily identical to every legal consequence associated with “without prejudice.”
Confidentiality and privilege labels
A request for a smaller audience, not an automatic cone of silence.
What it usually means
The sender expects restricted handling. Legal enforceability may depend on agreement, duty, circumstances, court order or another source.
Use it when
The material genuinely requires controlled distribution and you can identify the basis and permitted recipients.
Do not use it when
You believe the word alone creates legal professional privilege or prevents use in court.
Two adjectives. Still only one envelope.
What it usually means
A conventional request that the named recipient handle the material privately.
Use it when
Sending sensitive personal or commercial information directly to an intended recipient.
Do not use it when
You expect “private” to stop lawful disclosure, compulsory production or reliance where otherwise permitted.
Privilege is a legal relationship, not a self-awarded loyalty badge.
What it usually means
The sender asserts that a recognised privilege—often legal professional privilege—protects the communication or document.
Use it when
The communication genuinely falls within the relevant privilege, such as a confidential lawyer-client communication for legal advice or litigation, subject to the applicable law.
Do not use it when
Writing to the opponent, copying a lawyer into ordinary business correspondence, or trying to protect facts simply by declaring them privileged.
The spreadsheet would like you to lower your voice.
What it usually means
The material contains commercially sensitive information and is expected to be handled on a restricted basis.
Use it when
The information is genuinely commercially sensitive and any governing agreement, order or protocol supports the restriction.
Do not use it when
You assume it prevents disclosure required by law or automatically creates privilege.
A warning label cannot personally issue a suppression order.
What it usually means
The sender says material should not be published. The legal reason might be a court order, statute, undertaking, confidentiality obligation—or none stated.
Use it when
You can identify the actual restriction and its scope.
Do not use it when
You are inventing a prohibition or assuming the heading binds every recipient.
Status and intention labels
A document still wearing its pencil marks.
What it usually means
The document is incomplete, unapproved or circulated for discussion.
Use it when
You genuinely expect revision and do not intend the document to be treated as final.
Do not use it when
You are sending the final operative version. Remove draft headers and tracked changes before filing or signing.
We may agree to agree, but we have not necessarily agreed.
What it usually means
The parties do not intend to be bound until a formal contract or deed is executed. Actual intention and context still matter.
Use it when
Negotiating terms that must be captured in a later executed agreement.
Do not use it when
You intend immediate binding agreement, or you assume the phrase cures inconsistent conduct and wording.
A sentence declining to confess is not a settlement framework.
What it usually means
The sender says an act, payment or proposal should not be treated as admitting liability or facts.
Use it when
Making a practical proposal or taking a step while expressly maintaining a disputed position.
Do not use it when
You expect it to create settlement privilege by itself or erase an admission actually made elsewhere in the communication.
The record has not signed this agreement.
What it usually means
An informal request that a statement not be attributed or used. In litigation it is dangerously vague.
Use it when
Rarely—and only after everyone clearly agrees what it means.
Do not use it when
Communicating something sensitive that requires actual legal protection.
A priority request, not a privately enacted court timetable.
What it usually means
The sender wants prompt attention.
Use it when
There is genuine time sensitivity; state the external deadline, event and action required.
Do not use it when
Everything you send is urgent. Eventually the word becomes office wallpaper.
Two words that should never be used as a solo performance.
What it usually means
The parties have agreed to the stated order, step or wording.
Use it when
Actual authority and agreement cover the exact version being sent.
Do not use it when
Consent is assumed, partial, conditional or still being negotiated.
One topic, two letters
If you need both an open procedural record and a settlement proposal, separate them.
The record
State the issue, dates, documents, procedural request and response deadline you say applies.
The compromise
Make the genuine settlement proposal and explain how acceptance would resolve the identified dispute.
The log
Save both emails and attachments separately, preserving their labels and complete threads.
Before you press send
- I know the job this communication is doing.
- The heading matches its substance.
- I have not mixed open allegations with a settlement offer unnecessarily.
- Any offer clearly states its terms, scope, costs treatment, deadline and acceptance method.
- I checked the current court rule before calling something a formal offer.
- I have not assumed “confidential,” “privileged” or “official” creates protection by itself.
- I am comfortable with an independent reader seeing my tone.
- I saved the sent email and every attachment to the correspondence record.