Discussions will be protected by without prejudice privilege where it is obvious that their purpose is to resolve a dispute, even if this is not expressly agreed between the parties. This may prove important in cases involving litigants in person or lay litigants, as in the recent English case of Suh v Mace (UK) Ltd.
What is without prejudice privilege?
Without prejudice privilege prevents statements made in a genuine attempt to settle a dispute from being used as evidence against the party that made them. It is founded on the public policy of encouraging litigants to settle their disputes rather than litigate them to a finish.