A stern heading has arrived wearing capital letters and expecting immediate respect.
A plain-English understanding of what the label may do—and why the contents still matter more.
A barrister with a settlement and costs practice.
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.”