ADRG01800 | Discussions are held “without prejudice”

The term “without prejudice” has a precise, and quite narrow meaning, often misunderstood both by officers and by customers. Crucially, it does not mean that everything that is said within a mediation is a secret between HMRC and the customer or that a mediation is “off the record”.

In the context of mediation, “without prejudice” means that the parties are able to propose and explore possible solutions to the dispute under consideration without having to worry that their discussions will in some way be regarded as an admission should the parties not reach an agreement.

For example, a customer who is involved in a dispute with HMRC about the fairest method by which its costs should be attributed to its supplies might, during mediation, propose a calculation based on floorspace as the most “fair and reasonable” approach. If the mediation were to be unsuccessful and the dispute were then to be heard by the Tribunal, the customer might then assert, contrary to what it had said during the mediation, that turnover was the most fair and reasonable method.

In these circumstances, HMRC would not be able to refer at the Tribunal to the customer’s assertions during the mediation. The proposals and discussions were made in a particular context and without an intention to affect the legal rights of the customer.