Home Separation & Divorce What are without prejudice communications and why are they helpful?

What are without prejudice communications and why are they helpful?

“Without prejudice” communications refer to discussions or correspondence between parties that are intended to be confidential and cannot be used as evidence in court if the matter proceeds to litigation.

These communications are usually made during negotiations to resolve a dispute. An experienced Family Lawyer would advise you throughout your matter as to what would be considered without prejudice communications.

How Do Without Prejudice Communications Work?

The communications may involve concessions that you are willing to make or issues that you are willing to agree to, such as historical facts, in order to resolve the dispute.

The key point is that without prejudice statements cannot be referred to or introduced in court as evidence. This allows the parties to speak more freely and explore settlement options without the fear that anything they say will later be used against them.

Why Are Without Prejudice Communications Helpful in Family Law Matters?

Encourage Open Negotiations: Knowing that statements made in negotiations can’t be used in court allows both parties to discuss their positions and potential solutions openly, without fear of these discussions being held against them in a legal proceeding. It allows parties to speak freely and openly, without prejudicing their position that is formally before the court.
Facilitate Settlement: These communications promote settlement because they provide a safe space to negotiate terms without the pressure of affecting their position before the court. Parties are more likely to make concessions or propose solutions that may otherwise seem risky.
Limit Court Proceedings: Without prejudice discussions can help resolve matters outside of court, saving time, costs, and emotional strain for everyone involved. A final hearing may be several years away. If a resolution is reached through negotiation or mediation, it can prevent a lengthy and expensive trial.
Control over the Outcome: Family law is a highly discretionary jurisdiction. If your matter was determined by 7 different judges, you may well have 7 different outcomes – and all could be correct in the eyes of the law! By engaging in without prejudice communications and negotiations, you take back control over the outcome. You ultimately have a say in what the outcome of your case will be. You play a key role in drafting the Orders that are agreed to.

Limitations of Without Prejudice Communications

When Does Without Prejudice Protection Not Apply?

It is important to note that the without prejudice protection does not apply to all conversations.

Communications may be marked without prejudice, but that does not mean it is protected.

For example, the protection may not apply in cases involving fraud or other serious misconduct. The protection may not apply if the communication does not involve settlement discussions or the resolution of an issue in the matter.

Get Expert Legal Advice on Without Prejudice Communications

The communication may also be relied upon at a later date in relation to an application for one party to pay the other party’s legal costs in the proceedings. It is important that you retain a solicitor who specialises in family law so that you can obtain expert advice on how best to utilise without prejudice communications.

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.