Hi harrybar,
Thank you for your question!
To answer your question succinctly, individuals are only protected by
the term "without prejudice" in relation to written attempts at
negotiation/settlement in a dispute between two parties. The "without
prejudice" qualifier indicates that correspondence aimed at reaching
an out-of-court settlement, whether exchanged between individuals or
between lawyers on their behalf, will not be admissible in court
should a private resolution not be reached. The intent is to encourage
the parties involved to reach an independent settlement; the "without
prejudice" qualifier allows them to frankly state their views and
propositions without fear that this information will be used against
them if legal proceedings take place.
As mentioned, "without prejudice" protects the client in any
negotiation-focussed correspondence related to his/her case, whether
exchanged directly between the conflicting parties or between their
solicitors. The key term here is "negotiation-focussed." Some
complainants incorrectly assume that the magic words "without
prejudice" protect any communication between parties, but this is only
the case if the documents involved contain some attempt toward
reconciliation/settlement. Any veiled threats or attempts at coercion,
for example, would be admissible in court.
FloridaLegalAnswers.com offers the following definition of "without
prejudice," which may give you further insight:
"A statement set onto a written document which qualifies the signatory
as exempted from its content to the extent that they may be
interpreted as containing admissions or other interpretations which
could later be used against the person signing; or as otherwise
affecting any legal rights of the person signing. A lawyer will often
send a letter "without prejudice" in case the letter makes admissions
which could later prove inconvenient to the client."
Lawyers and individuals often use the qualifier "without prejudice" in
a wide variety of documents, but it isn't always appropriate and
shouldn't be assumed to legally imply confidentiality. Two simple
questions will help you to determine if a document can in fact be
accurately labelled "without prejudice":
- Is there a dispute in existence?
- Is the letter written to propose a settlement or to state the
writer's views with respect to the matter in dispute?
In short, the term "without prejudice" is easiest explained as
"protection from disclosure" in the context of attempts at
negotiation. Should the case go to court, solicitors can make
reference to the fact that negotiations took place, but cannot dislose
the nature of what was put forward barring factors such as threats or
accusations, or the obtainment of consent from both parties involved.
Here are some links which address the intricacies of the term "without
prejudice":
Bamboozling the Public by Mark Adler - discusses common
misinterpretations of the term "without prejudice":
< http://www.adler.demon.co.uk/bam.htm >
Law Archives - Gareth John Davies
< http://members.shaw.ca/childlaw/archives/topics/lglaw/lg-notes/w-prejud.htm
>
"Without Prejudice" explained
< http://www.brewerconsulting.co.uk/cases/CJ0028RR.htm >
Without Prejudice Negotiations
< http://www.hk-lawyer.com/2000-8/Aug00-litigation.htm >
Without Prejudice - or Not (Q.D. Agnew, "The Saskatchewan Advocate,"
March 2002)
< http://www.stla.sk.ca/with0302.shtml >
I used the following terms in my search:
definition "without prejudice"
meaning "without prejudice"
significance "without prejudice"
term "without prejudice"
"without prejudice" correspondence between solicitors
"without prejudice" correspondence between lawyers
Please let me know if I can be of further assistance - all the best!
Emjay-ga |
Clarification of Answer by
emjay-ga
on
24 Sep 2003 11:28 PDT
Hi harrybar,
On further research it appears that there's no guarantee the
correspondence in question would be protected by the statement
"without prejudice." This disclaimer applies strictly to *financial*
settlement offers put forward once divorce proceedings are actually
underway, and not to attempts to have a divorce petition withdrawn.
With respect to providing your wife's son and daughter with copies of
your answer to the petition, you may wish to explain the situation to
them via private, non-legal correspondence or face-to-face, as
disclosing legal documents to a third party would negate any
confidentiality.
Your wife's mental condition certainly makes this a tricky situation.
My suggestion would be to consult your solicitor to see if there are
any options/loopholes which may allow for the petition to be dismissed
given your wife's mental illness.
Searches used:
mentally ill divorce complainant
dismiss divorce petition
contest divorce petition
confidentiality divorce petition answer
respond divorce petition "without prejudice"
I also received much-appreciated input from fellow GA researcher
expertlaw.
All the best, and good luck to you!
Emjay-ga
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