Reserving your Client's Rights - The Statement

What does it mean when a litigant writes in correspondence, “I reserve all of my legal rights”?

Unless a litigant is dealing with an issue of waiver, which may arise in insurance litigation, a litigant need not worry about waiving any legal rights by virtue of a response letter. Should a litigant wish to exercise their legal rights, there are rules and procedures as well as timelines in place for them to do so. Identifying one position in correspondence labelled without prejudice, and then later taking a different position in a claim or defence, does not vitiate the litigant’s legal standing or legal rights which are inherent.

What rights are you reserving, when you make that statement? How ought opposing counsel to respond to that?

If you’re concerned about any waivers to your client’s rights or legal ability to launch a claim or defend against a claim, you should carefully consider what if any admissions have been made, and must be retracted or re-directed; otherwise, the statement serves no function in the litigation context.

Without Prejudice Labels and Litigation Privilege, Settlement Privilege, and Privilege in General is the subject of the next commentary with full case citations identifying the do’s and dont’s of the use of label.