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Dining without prejudice?

According to the wisdom of the great Oscar Wilde (in The Importance of Being Earnest) “once a week is quite enough to dine with one’s own relations”. This is a sentiment likely to be shared by a couple whose dinner date has been at the centre of a recent legal tussle, and which raised an interesting, if somewhat technical, legal issue.

The case, known as BE v DE is in essence a dispute over whether or not the English courts have jurisdiction to hear this particular divorce and financial remedy case. The international couple concerned are very wealthy, and as is common in big money cases, the wife hopes to have the case heard here, where she hopes she will do better, and the husband hopes that the courts in his home country will deal with the case as there the outcome is likely to be less generous to the wife.

The dispute about the dinner they had together centres around whether or not their dinner date could be considered a ‘without prejudice’ meeting.

What is “without prejudice” and why is it important?

Discussions and correspondence that are “without prejudice” cannot later be referred to in a court or tribunal, in contrast to “open” correspondence or negotiations, which can. The concept of “without prejudice” is an important tool so that people in dispute can freely discuss ways to resolve their dispute without worrying that any admissions or offers to settle which they might make will be used against them at a later date. For example, within collaborative law, all the discussions which take place at four-way meetings are without prejudice so as to encourage cooperation and free discussion about possible ways forward. Likewise, in mediation any proposals made and agreement reached are without prejudice to any court proceedings.

In the BE v DE case, the husband gave the wife a proposed form of a written agreement between them at the ill-fated dinner back in April 2013. He described it as a “post-pre-nup”, to get financial concerns out of the way so they could try to rebuild their marriage. She was not expecting it, and on skim reading it the wife saw many references to their separation. She rebuked him, and an argument ensued which ended when he stormed off.

The wife petitioned for divorce in England, and the husband petitioned in his home country. In court proceedings in this country, the wife filed statements referring to the meeting and the draft agreement to support her case that the English courts had jurisdiction. This was because the document contained a proposed provision that she should continue living at her address in London “… which she currently lives in”, which the wife believed supported her case about being habitually resident in England. The husband argued that the meeting and the draft written agreement were ‘without prejudice’, and as such the wife should not refer to them in court documents. He wanted any mention of the meeting or document to be removed from the statements she made.

Ultimately the husband’s application to have the wife ordered to remove all mentions of the meeting and the associated document did not succeed.

The judge found that there must be a sufficiently definable dispute in existence for the ‘without prejudice’ protection to be relevant. Here the wife’s intention when she met the husband for dinner was to try to save their marriage, whereas the husband’s intention in preenting the document was to limit her eventual claims on divorce. The judge decided there was not at that stage a dispute that they were both trying honestly to resolve through negotiation.

Even if there had been a dispute in existence, then it would have needed to be clear that both parties were genuinely seeking to compromise the dispute through negotiation in order for those negotiations to attract the protection of being ‘without prejudice’. Both people need to be clear that they are attempting to settle a dispute (as when entering mediation or collaborative practice). On the facts here, the judge said it rather looked like the husband was trying to impose something on the wife in the form of a separation agreement, and there was no genuine bilateral settlement negotiation.

As a result the wife will be free to refer to the dinner, discussions and document in her evidence in support of her claim that the husband accepted her habitual residence here. This should assist her case that the English courts ought to accept jurisdiction.

So to recap, if you want to be able to claim the protection of the ‘without prejudice’ umbrella for negotiations, there needs to be a defined dispute and a genuine attempt to settle it through negotiations by both parties.

As always, if you would like to discuss this or any other aspect of family law with us, please arrange an appointment on 01223 443333.

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