“Without Prejudice”. The words sit proudly, perhaps ominously, atop the family solicitor’s letter setting out the latest financial offer in the war of the spouses.
I’m often asked what this term means and have therefore added it to my Legal Lexicon. To lawyers, the term represents a form of legal privilege (there are different forms of legal privilege but I need not go into that here). What is legal privilege? Well, imagine your divorce lawyer wants to make a financial offer on your behalf. If the offer is made in an open solicitor’s letter then this offer can be shown to a judge in any court proceedings. The offer may be overly generous with a view to bringing proceedings to an end but if the expensive proceedings drag on then it will not be possible to ask the judge to ‘forget’ the terms of your offer. But if the offer letter is written “without privilege” it is a way of testing the water for settlement without the judge seeing the letter and being influenced by it in the subsequent proceedings.
Such ‘without prejudice’ letters can be read by a judge in a special type of hearing called a Financial Dispute Resolution (FDR) hearing when offers can be compared and the judge can comment upon the reasonableness of the settlement positions. If settlement cannot be achieved at the FDR the same judge cannot then preside over the final hearing (or trial) as otherwise they would remember the ‘without prejudice’ offers and be influenced by them.