You may well have heard of the term without prejudice but the meaning of this rule of law isn’t necessarily clear or obvious to those outside of the legal profession.
So what exactly does the term ‘without prejudice’ mean in the context of family law? How might you use this rule in a family law dispute such as a divorce case, or fall foul of it?
What is ‘without prejudice’ in family law and why does it exist?
The ‘without prejudice’ rule of law protects statements and communications which are made in an honest attempt to settle a dispute, and prevents their disclosure as evidence in court or in any other legal proceedings.
The ‘without prejudice’ rule was put in place to reassure all parties involved in a dispute that whatever is said or written down during settlement discussions will not be used as evidence against them at a future date. In essence, it is meant to encourage honest communication and genuine disclosure.
The ‘without prejudice’ rule is part of another law, that of ‘privilege’. There are two parts to the law of privilege,
The legal professional privilege which allows individuals to receive legal advice with the assurance that what they tell their solicitor will not be disclosed
The ‘without prejudice’ rule which allows individuals to attempt to settle a dispute without the risk of their communications being used against them, as already mentioned above
What are the conditions of ‘without prejudice’?
The ‘without prejudice’ rule can only be applied when there is a genuine attempt to resolve a dispute, on both sides, even if one or more parties state that the discussions are ‘without prejudice’.
The separated couple who meet to discuss starting again and to settle the differences that have caused their break-up are meeting ‘without prejudice’.
The husband who arranges a dinner with his estranged wife under the guise of trying again, and then presents her with a post pre-nuptial agreement to avoid a divorce may not be protected by the ‘without prejudice’ rule.
All forms of communication are covered by ‘without prejudice’, whether they are oral or written. So whether you meet to talk over a coffee in an attempt to come to an agreement, or converse by email, everything that you say or write down is considered to be ‘without prejudice’ as long as you are genuinely seeking to solve the dispute.
Where one party simply sets out their case, and does not seek to resolve the dispute, this is not covered by ‘without prejudice’.
It is not necessary for legal proceedings to have already started, or even to have been put forward as a possibility or threat, for a genuine settlement discussion to be considered ‘without prejudice’, but there must be an actual dispute in place, with reasonably defined issues.
All of the communications that form the settlement discussion are protected in their entirety. No part of them can be used in court or legal proceedings.
If the settlement discussion is a genuine attempt to resolve a dispute, then the communications are protected even if the term ‘without prejudice’ is not invoked.
So should the separated couple that I mentioned earlier not manage to come to an agreement, neither of them can use anything that was discussed in their meeting as part of their divorce proceedings because they met with the genuine intent to settle their dispute.
The ‘without prejudice’ rule protects their conversation.
Should one party make a ‘without prejudice’ offer, then the response from the other party is also protected by the ‘without prejudice’ rule, whatever that response is.
The protection awarded by the ‘without prejudice’ rule can only be waived if both parties agree to it. One party cannot simply decide that a telephone call, for instance, that was previously labelled ‘without prejudice’ is now not protected and disclose the contents of that conversation in court without first seeking the other party’s agreement.
Does a meeting or communication have to be stated as ‘without prejudice’ to be recognised as that?
If a meeting or other form of communication takes place for the genuine purpose of settling an active dispute, then it is not necessary to state beforehand that it is ‘without prejudice’, although it is always advisable to do so.
Any later disagreement over whether the meeting or communication was ‘without prejudice’ may be settled in court.
Mediation may be arranged through your solicitor as a way to sort out the issues that arise from a dispute in a safe, neutral and constructive environment. The mediator is there to ensure that each party has their say.
Where mediation is arranged, with an official mediator in attendance, all communications that occur during the mediation will be covered by the ‘without prejudice’ rule.
The only exception to this is for any financial details that may be disclosed during the mediation process. These may not come under the protection of ‘without prejudice’ and may be used in future legal proceedings.
Exceptions to the ‘without prejudice’ rule
- There are several exceptions to the ‘without prejudice’ rule which include but are not limited to,
- where the protected communication demonstrates that a settlement agreement was reached
- where the communication helps the court interpret the settlement agreement and the intent of both parties
- where the communication suggests the settlement agreement was reached fraudulently, through misrepresentation, or unduly influenced
- where the communication explains any delay in the proceedings or agreement process
- where the communication provides evidence of blackmail, perjury, or other serious impropriety
- in some cases, where the communication provides financial details
Importantly, an exception to the privilege attached to without prejudice offers is with respect to children’s matters. The public interest in encouraging parties to resolve their disputes can be inconsistent with the best interests of the children which is the paramount consideration of the Court.
The Court has a discretion to include a without prejudice offer made in relation to children’s matters if it considers that the best interests of the child necessitate its inclusion.
Why seeking early legal advice is critical
As you can see, ‘without prejudice’ provides protection for both sides of a dispute when they genuinely seek settlement but in the emotional turmoil of a divorce or dispute, individuals may inadvertently break this rule.
As a rule of law, ‘without prejudice’ is based on intent, the intent to settle a dispute, whether or not that settlement is successful.
It cannot be used to deceive the other party or courts by, for instance, gathering information under the guise of ‘without prejudice’ to later use as evidence.
In a family law dispute, a solicitor can advise you of which communications should be labelled ‘without prejudice’ long before settlement discussions are entered into.
Once a conversation or other communication is protected by ‘without prejudice’, then no part of it can be used in court. Your solicitor can ensure that you do not inadvertently reveal any of the protected communications, and on the flip side, legally act against the other party should they disclose any of the protected information in court.
A solicitor can also advise you on any ‘without prejudice’ communications that are affected by the above mentioned exceptions. For instance, if a settlement agreement is reached but then the other party denies this, the courts may allow the relevant part of the communication to be freed from its ‘without prejudice’ protection so that it can be provided as evidence.
Early legal advice provides an informed buffer that will not only advise you on the best way to settle your dispute and the legalities of ‘without prejudice’ communications, but also protect you from falling foul of such laws yourself.