…and how can it get you into trouble?

In a recent case of BE v DE (click here to read the full judgment) the husband made an application to the court looking for his wife’s written evidence to be changed.  His concern was that a comment made by him in a document, attached to the wife’s statement, that his wife should continue to live in England was now being used as evidence against him.

This was a problem because he was running a case that another country should have the conduct of the divorce and the associated financial claims.  If he could disprove that his wife was habitually living in England then that might help him.  He had already issued his own proceedings in another country – presumably one that was advantageous to him.  The document exhibited by the wife undermined his argument.

In a meeting between him and his wife, before either had told the other that they had issued divorce proceedings in their country of choice, the husband tried to get his wife to sign a document that he said would enable them reconcile.  He was trying to suggest to her that if she signed it then he would know that she loved him and not his money.  The document was clearly a legal document and repeatedly referred to the couple separating.

Once the wife became aware of the legal nature of the document she wisely refused to sign it without legal advice.  She was able to keep hold of the document which stated that `she should be entitled to continue living at her address in London “… which she currently lives in”’

The husband now wanted to run an argument that the meeting between him and his wife, the conversations and offer that he made, contained in that document, should be treated as if they were “Without prejudice.”

What does without prejudice mean?

Without prejudice means that an offer or concession made, in an attempt to settle a dispute, cannot later be used against the person who made the comment.  It is a legal concept that is designed to encourage people to try to make offers to settle cases early.

Lawyers will be careful to make it clear when a comment is intended to be without prejudice.  They mark letters containing proposals or settlement concessions “Without Prejudice.”

If lawyers are meeting to try and settle a case then they will explicitly state at the start that the discussions are to be treated as “Without prejudice” and ensure that everybody agrees.

In this current case the meeting was held without lawyers being present – it was just the couple meeting as their marriage was coming to an end.  The wife argued that they were trying to find a way forward.  The husband seemingly had other ideas, namely to obtain his wife’s signature to a formal legal document.

Neither party referred to the meeting at the restaurant or the discussions as being without prejudice.  That in itself was not necessarily the end of the matter.

Do proposals have to be marked or explicitly referred to as being Without Prejudice?

Even if a letter or conversation is not explicitly stated to be “Without prejudice” the Court can be invited to consider the details as if they were.

The test is helpfully set out in this judgment.

First of all, was there an active, live dispute between the couple?

The court decided in this case that there was not.

The marriage was certainly coming to an end and both partners had issued legal proceedings.

The fact, however, that neither party had told the other of their respective applications meant, in the court’s eyes, that the dispute was still dormant.  It had not surfaced or become apparent to either partner that there was a fully activated legal dispute at this stage.  The court agreed with the wife’s assertion that this was just a couple meeting in restaurant to discuss the state of their relationship.

Secondly, if there was an active and recognised dispute, was this a discussion intended to explore settlement of that dispute or to put across proposals for settlement?

The court again found against the husband.

The Judge decided that there has to be a difference between a genuine attempt to explore settlement proposals and what the husband had tried to do; he was not making proposals for settlement that could be explored and discussed further.  He was, instead, through trickery and dishonesty trying to trap his wife’s signature to terms that he hoped would then prevent his wife from being able to negotiate or hold out for her claims against the matrimonial pot.

What should have happened instead?

The husband should have ensured that it was recognised and agreed that any conversations were “Without prejudice” either through correspondence at the time of agreeing the meeting or by stating as such at the start of the meeting.  It is likely that he did not for two reasons.

He might not have been aware of the nature of “Without prejudice” discussions and proposals.  More likely, he knew that if he had started talking in such legalistic terms that his wife would have become suspicious.  That would have alerted her to the need to take care and legal advice – which is exactly what she did once her husband’s attempt to trick her into signing a document had become apparent.

What does this mean for your divorce?

In your own divorce and separation it is essential that conversations and settlement proposals are recognised as being without prejudice.

Once it is established that comments are protected, couples need to ensure that they do not inadvertently refer to such proposals when they appear in front of a Judge.  If either partner accidently refers to without prejudice proposals then the Judge is likely to stop the court hearing or appointment and order that the hearing should restart with a new date and a new Judge who knows nothing about the without prejudice discussions.  Also beware that the person who mistakenly refers to the protected conversations or comments may well be ordered to pay a contribution of the other persons’ costs.

There is an exception to this rule if the court hearing is a Financial Dispute Resolution or FDR within matrimonial financial claims applications.

This is a danger that people who are running their own divorce may fall into without knowing they are doing anything wrong.  It is clearly important that you take legal advice and representation when you are getting divorced or separating.

Do you need help with your divorce?

If you are thinking about divorce, or are currently acting for yourself but want to have the protection of having a qualified divorce solicitor working for you then get in touch with us today.

Family Law in Partnership are divorce solicitors in London.  We can help you to avoid the pitfalls and costs that could wreck your case.  Email us today confidentially on hello@flip.co.uk or telephone and ask to speak to one of our divorce solicitors on 020 7420 5000.  We will be happy to help you.