Your Settlement Email Is Being Used Against You in the DIFC Courts

Without prejudice protection in the DIFC Courts concerns genuine negotiations to settle a dispute. It does not automatically cover every payment proposal or message mentioning an amicable solution. If an opponent cites your settlement email, preserve the complete exchange and ask counsel to assess the communication and the purpose for which it is being used before responding on its substance.

A request for more time to pay an admitted debt can present a different question from a compromise of disputed liability. A formal Part 32 offer also has specific rules. The first step is classification, not an assumption that the email heading decides the result.

Is your DIFC settlement email actually protected?

Communication	Question to examine	Unsafe assumption
Negotiation of a disputed claim	Was this a genuine attempt to settle that dispute?	Every surrounding business email has the same status
Request to delay admitted payment	Was any relevant liability actually disputed?	Calling it settlement guarantees protection
Formal Part 32 offer	Does it satisfy the rule and its disclosure restrictions?	The offer can be shown to the trial judge immediately
Offer raised on costs	Is it admissible for that purpose at this stage?	Protection on merits always prevents costs consideration
Mixed email thread	What was each message doing at the time?	One later heading changes all earlier exchanges

Ask the legal team to identify the disputed right, the negotiation and the proposed use of the material. An email may be invoked to prove liability, explain an asserted agreement or address costs. Those purposes should not be collapsed into a general statement that it is either public or secret.

This guide focuses on the ordinary distinction between genuine settlement negotiations and commercial payment discussions, plus the express Part 32 restrictions. It is not an exhaustive account of every exception or waiver issue. Where an opponent advances a different basis for admitting the material, that basis needs separate advice.

What Georgia Corporation decided about payment discussions

In Georgia Corporation v Gavino Supplies, ARB 005/2016, 11 October 2016, the court considered an objection to correspondence and witness evidence said to concern without prejudice communications. It did not give the entire sequence one uniform status.

At paragraphs 34 to 39, the court distinguished a later protected communication from earlier commercial discussions about satisfying an acknowledged liability. References to an amicable solution did not turn those earlier exchanges into negotiations of a relevant dispute. Later protected discussions did not retrospectively change the earlier communications.

The court admitted the earlier material but rejected the stay and further-information applications and ordered recognition and enforcement of the award. Success on an admissibility argument was therefore not success on the substantive application.

The useful point for a client is to reconstruct the dispute as it existed when the message was sent. Do not start with the label and work backwards to invent a disagreement. Equally, do not assume that genuine settlement discussions lose their character simply because the same parties have also sent open commercial correspondence.

Prepare a short chronology recording when the claim was asserted, when it was disputed and what each subsequent communication sought to resolve. The chronology should refer to the actual records, including any acknowledgement that cuts against the position now being advanced.

Read the complete exchange before answering the quotation

A single sentence can appear more definite when detached from its conditions. Retrieve the original message, attachments and earlier replies. If the exchange moved between email, a meeting and a later written proposal, give the legal team the sequence rather than only the message the opponent selected.

Record which parts were a factual account and which were proposed terms. In a hypothetical payment dispute, a business might offer a reduced sum to end contested proceedings while denying liability. In another, it might acknowledge the full debt and ask for instalments. Do not assume those situations are equivalent.

Use these categories to organise instructions without deciding the legal question yourself.

Do not circulate the disputed communication more widely to demonstrate the problem. Preserve it within the legal team's review process. Avoid deleting or rewriting records, and retain originals even if a working bundle later uses an agreed redacted copy.

Where the opponent's account is incomplete, prepare the missing context for counsel first. Replying to the court with the entire negotiation attached may compound the very disclosure issue you are trying to address.

Keep Part 32 offers away from an ordinary merits bundle

Part 32 creates a specific offer procedure. RDC 32.4 requires a written offer stating that it is intended to have Part 32 consequences, identifying the claim or issue covered and addressing any counterclaim. It also requires a specified period for the stated costs treatment if the offer is accepted, subject to the rule for offers made close to trial. Do not assume that this period is an automatic expiry date for the offer.

Under RDC 32.46, a Part 32 offer is treated as without prejudice except as to costs. RDC 32.47 restricts communication of the fact of the offer to the trial judge, or the judge allocated in advance to conduct the trial, until the case has been decided.

RDC 32.48 contains specified exceptions, including written agreement by offeror and offeree, proceedings stayed following acceptance and the stated tender-before-claim situation. The restriction should therefore be read with the exceptions rather than summarised as an absolute prohibition in every setting.

When preparing a merits bundle, flag any offer document for legal review. Do the same for a witness statement or chronology that mentions the offer without attaching it. The rule concerns communication of the fact that an offer was made, not merely whether the original letter is physically included.

Common mistake. Do not attach a Part 32 offer to show the trial judge how reasonable you have been. The rule restricts communicating the offer before the case is decided, subject to its stated exceptions.

A message marked without prejudice is not necessarily a compliant Part 32 offer. Conversely, identifying that the Part 32 requirements were not met does not by itself answer every other privilege or costs question. Keep the classifications separate.

Distinguish a merits objection from a costs argument

The purpose of the proposed use matters. Part 32 expressly contemplates costs consequences, and its protection is stated to be except as to costs. That is different from allowing an opponent to use a negotiating figure as proof of liability at the trial.

RDC 38.8 also requires the court, when deciding a costs order, to consider relevant circumstances including an admissible non-Part 32 offer drawn to its attention. The word admissible matters. The rule does not say that every private negotiation becomes usable on costs merely because one party wants it considered.

If the opponent relies on an offer in costs submissions, ask whether the communication is admissible for that purpose and whether its terms have been accurately described. A conditional proposal may be misleading if quoted as an unconditional payment offer.

Read the whole financial proposal. Identify whether the figure included interest, costs, multiple claims or a non-monetary obligation. Do not compare a bare number with a judgment amount and assume that the costs result follows automatically.

This article does not calculate Part 32 consequences or determine whether a particular offer should have been accepted. Those questions require the exact offer, timing, result and relevant provisions. The immediate point is to prevent a merits privilege objection from being confused with the later costs exercise.

Respond promptly if the material is already in court papers

Tell the legal team exactly where the material appears: the application, statement paragraph, exhibit page, skeleton argument or hearing correspondence. Supply the filing and service dates and any approaching hearing. A general complaint that negotiations have been disclosed is harder to address than a precise reference.

Ask what protective or procedural step is appropriate before filing a substantive response. Depending on the issue, representatives may need to raise an objection, seek an agreed corrected bundle or ask for directions. This is a menu for advice, not a promise that any particular remedy will be granted.

Where an objection is raised, describe its basis accurately. The message heading, the existence of a dispute and the negotiation's purpose should be available to counsel. Do not make an absolute assertion that all correspondence between the parties was protected if open operational messages are mixed into the file.

If the document contains separate confidential business information, identify that too. Confidentiality and without prejudice protection are not interchangeable labels. A business may have concerns about wider dissemination even where a privilege objection requires a different analysis.

Keep one controlled record of the versions used in proceedings. If a replacement bundle or amended statement is agreed or ordered, confirm which version is operative and what remains on the court file. An informal assurance that the opponent will stop referring to the material may not answer the practical problem of existing documents.

Tell counsel if the same communication has appeared elsewhere, such as another statement or an earlier application. A response confined to the latest quotation may miss an existing reference. Record where it appeared without deciding for yourself whether that earlier use changed its legal status.

Separate future negotiations from open case correspondence

A useful internal process reduces avoidable ambiguity without pretending that a heading alone creates protection.

1. Identify the actual dispute before drafting a compromise proposal.
2. Decide with counsel whether the communication is open, a protected negotiation or a formal offer under Part 32.
3. Keep routine notices and operational instructions separate where practical.
4. Check the proposed terms, recipients and authority to make the offer.
5. Preserve the complete exchange and record any acceptance or rejection accurately.
6. Review court bundles and statements for offer references before filing or service.

Keep the following records distinct so that later review does not depend on memory.

Key takeaway. Identify the dispute, the communication's purpose and the proposed use. The word settlement is not a substitute for that analysis.

Sources checked on 29 September 2026. A bounded search did not identify a later decision reversing the cited Georgia privilege analysis. The guide does not certify exhaustive later history or decide the status of any particular client's correspondence.

Frequently Asked Questions

Does writing without prejudice make every email protected? Do not assume so. The Georgia decision requires genuine negotiations to settle a dispute and distinguishes discussions about paying an admitted liability.

Are payment instalment requests always protected negotiations? No. Georgia treated the relevant earlier discussions as commercial arrangements for satisfying acknowledged liability, not settlement of a dispute.

Can later negotiations protect earlier open emails retrospectively? Georgia rejected that approach on its facts. Classify communications by their context and purpose at the time.

Can a Part 32 offer be shown to the trial judge? RDC 32.47 restricts communicating the fact of the offer until the case is decided, subject to the exceptions in RDC 32.48.

Is every without prejudice offer a Part 32 offer? No. Part 32 has specific requirements. Failure to meet them does not settle every separate privilege or costs question.

Can a settlement offer matter when costs are decided? Potentially. Part 32 has its own consequences, and RDC 38.8 addresses admissible offers outside Part 32. Admissibility and context still matter.

Should I attach the full negotiation to rebut a quotation? Obtain advice first. Give the complete exchange privately to the legal team and identify the court document containing the disputed quotation.

Does excluding a settlement email mean the case is won? No. Admissibility and the merits are separate questions. In Georgia, the defendant was allowed to use much of the disputed material but still failed in its stay and information applications.

This article provides general information and does not constitute legal advice. Consult a qualified advocate before using disputed settlement communications in proceedings.

Related Guides

Our DIFC Court disputes page covers jurisdiction, service, default judgment and setting aside, immediate judgment, disclosure, costs and appeals under the Rules of the DIFC Courts.

• Your Lawyer's Advice Email Was Disclosed in a DIFC Case
• Settlement Signed but Not Paid: Which Agreement and Forum Govern?
• The Other Side Is Withholding Documents in Your DIFC Case