What is without prejudice and how can it help resolve disputes?

“The best number for a dinner party is two: myself and a dam’ good waiter”, so said Nubar Gulbenkian. This was perhaps the sentiment that the husband in a recent case should have considered before his ill fated dinner date with his soon to be ex-wife.

The case involved a very wealthy international couple, and centred around whether the English courts had jurisdiction to deal with their divorce and related financial dispute.   The wife wanted it heard in the UK and the husband didn’t.

As the dinner date progressed, the husband tried to persuade his wife to sign a proposed separation agreement, setting out suggested financial arrangements for their future apart.  The document referred to the fact that the wife was currently living in London.  In the context of their subsequent dispute about jurisdiction this would strengthen the wife’s argument for the case to be heard in England. The question for the court in deciding whether the English court had jurisdiction was whether the conversation over dinner had been “without prejudice”.

So what is “without prejudice”, what does it mean and why is it so important?

Conversations (and correspondence) that are “without prejudice” cannot later be referred to in court, whereas “open correspondence” or “open conversations” can be.  The use of “without prejudice” conversations is a very important tool for family solicitors who try to keep couples away from the court forum.  Discussions which take place either in the collaborative law process or within a mediation setting are “without prejudice”.  Couples can discuss freely ways in which their disputes may be resolved, without worrying that what they say to try to settle their case could be used against them in court at a later date.  This encourages couples to talk candidly and allows them to reach agreements often much earlier than in protracted court proceedings.

So what happened in this case?  Well, the Judge thought that the dinner date conversations were not “without prejudice” and allowed them to be used as evidence in court. Perhaps the husband should have employed a “dam’ good waiter” and eaten alone that night.

Here at David Gray Solicitors we encourage couples to resolve disputes out of court wherever possible, so that they can have transparent and candid discussions to find the best solutions for their family, putting the needs of any children first.

For more information about family mediation and collaborative law contact Louise Law or Chat Live on our website.