18 September 2009

What's "Without Prejudice" and What's Not

You'll often see certain lawyer's letters marked "without prejudice," and it's not always clear what "without prejudice" means, particularly for people who aren't lawyers. The question has recently come up in a file of mine, and I thought I'd take the opportunity to explain things.

"Without prejudice" protects settlement proposals

Because of the incredible expense and degree of uncertainty involved in trials, lawyers will usually make many attempts to settle a case before it heads to trial. Although settlement efforts can take many forms, the cheapest is correspondence: the exchange of letters setting out the terms on which the lawyer's client would be prepared to settle the case.

As a general but not invariable rule, settling a file means finding a compromise between the parties' positions, which means that neither party gets everything he or she is looking for. Someone who is asking for sole guardianship might compromise and agree to an order for joint guardianship as long as he or she has the children's primary residence; someone who is asking for 70% of the family assets might compromise and agree to take half the family assets as long as spousal support is paid for a certain number of years.

Now, although compromise might be necessary for settlement, the position a party takes to achieve settlement is rarely the position that the party takes at trial. At trial, the person seeking sole guardianship is still going be demanding sole guardianship, and the person after the majority of the family assets is still going to be after the majority of the family assets. But if this is the case, which it usually is, people need a way to communicate settlement proposals without affecting their positions at trial. In other words, if you're suing for twelve 1972 Ford Pintos, you need to be able to propose settlement for six 1972 Ford Pintos and three 1973 Ford Pintos without being held to that position at trial.

This is where "without prejudice" letters come in. Marking a letter "without prejudice" protects the contents of the letter from being disclosed; the letter is being sent without prejudice to the party's position at trial.

To be clear, however, just marking a letter "without prejudice" isn't going to automatically exclude the letter from use at trial. To be excluded, the letter must actually contain a settlement proposal; as our Court of Appeal said in a 1984 case called Belanger v. Gilbert, "not all letters so marked are to be held inadmissible." In another appeal case, Schetky v. Cochrane, from 1918, the court set out what was required to protect "without prejudice" letters:
"... the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation...
"... before the privilege arises two conditions must exist, viz.: (a) a dispute or negotiation between two or more parties; and (b) in which terms are offered"
A "without prejudice" letter that meets this test cannot be put into evidence, whether at trial or as an exhibit to an affidavit.
To be even more clear, it is only the parts of "without prejudice" letters proposing settlement that are protected. A letter that talks about the number of Ford Pintos required to achieve settlement as well as setting hearing dates and the colour of the author's pants, can certainly be be put into evidence about the hearing dates and the author's pants, as long as the portion dealing with the Pintos is blocked out.

Costs

Proper "without prejudice" letters can't even be put into evidence to argue costs after trial, unless the letter contains a statement saying that the author intends to reply on the letter for the purpose of arguing costs. The English Court of Appeal summarized this point in a 1984 case called Cutts v. Head:
"...the court is able to examine and consider such correspondence, where the offeror, in the body of the correspondence in issue, expressly reserves the right to bring the letter to the notice of the judge on the issue of costs after judgment."
(Letters like these are sometimes called Calderbank letters, in reference to the 1975 case from the English Court of Appeal which authorized this narrow exception, Calderbank v. Calderbank.)

Subsequent letters not marked "without prejudice"

Interestingly, the protected status of "without prejudice" settlement proposals also applies to letters written in reply to such proposals that aren't marked "without prejudice." Halsbury's Laws of England says this at volume 15, paragraph 728 of the third edition:
Where the privilege exists, it covers not only the particular letter itself, but also all subsequent parts of the same correspondence on both sides, notwithstanding that they are not expressed to be “without prejudice," unless there is a clear break in the chain of correspondence to show that the ensuing letters are open. Moreover, where a letter offering terms, but not stated to be “without prejudice” is followed by another saying that the communications between the parties are to be “without prejudice” the former letter is protected.
"With prejudice" letters

"With prejudice" letters are different than "without prejudice" letters. Such letters not only deny any claim of protection from production to the court, they say that the letter will be produced to the court.

Of course, because marking a letter "with prejudice" doesn't make the contents of the letter any more true, or any more compelling and persuasive to judge who reads it; in fact, it's not entirely clear what is achieved by marking a letter "with prejudice" apart from expressing the author's conviction about the importance or accuracy of the contents.

To put it another way, any letter not marked "without prejudice" is "with prejudice" by definition, in the sense that there's nothing stopping the letter from being shown to the court.

Summary
  1. "Without prejudice" letters allow people to discuss settlement proposals without worrying that their proposals will be held against them later.
  2. The phrase "without prejudice" only protects settlement proposals. Marking your laundry list or any other communication "without prejudice" isn't going to stop the document from being used in court.
  3. The parts of a "without prejudice" letter that don't talk about settlement can be used in court, as long as the parts which do talk about settlement are blocked out.
  4. If a "without prejudice" letter is going to be used to argue costs down the road, the letter needs to say so or it can't be used to argue costs.

74 comments:

  1. I am sick of "without prejudice" corespondence. I think it's a slimy way of negotiating. If you're not willing to stand behind your offer, you simply shouldn't present it. My ex and lawyer hide behind these words on every letter, I find it difficult to think of this as productive rersolution method. I refuse to allow my lawyer to send "without prejudice" corespondance. If I am going to present something, I better be willing to stand behind what I say. We need more honesty and integrity in the family law system.

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  2. I do think there is something to be said for the appropriate use of without prejudice correspondence; sometimes you need the latitude to be able to offer a compromise without worrying that, if the settlement bid fails, someone will try to exact that compromise from you at trial without a corresponding compromise of their own.

    That being said, I actually share your view. I stopped sending without prejudice letters years ago. If I make a settlement proposal, it's a proposal I genuinely feel is fair, and I don't mind someone introducing my settlement letter in evidence. After all, if my settlement offer is fair, it's them who the letter will reflect badly on, not me or my client.

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  3. ...and thanks, Anonymous, for your comment. That is a really important point.

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  4. Harold Cooper12/1/12 7:11 AM

    JP If you are still checking this blog I have a question. We have a 21 yr old employee who is just joining our camp staff. In asking to complete her TD1 forms she talked with her father and he advised her that she should write: without prejudice UCC1-207. This is new to us and I am trying to find advise. What is this about? What does the statement represent in terms of Federal and Provincial employee rights/responsibilities and any implications that we would have as a camp. THANKS
    Harold Cooper, Executive Director, River's Edge Camp and Conference Centre, Cremona, AB 403-637-2766.

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    1. This is a reminder to everyone that I cannot give legal advice in reply to comments. If I have the time I will always be happy to talk you for a few minutes, once my office has done a routine conflict check to ensure that I can talk to you. Please feel free to call my office at 604-689-7571.

      With respect to this comment, however, I can say that I believe the UCC reference is to a US civil code provision on contract law which ought to be of absolutely no effect in Canada.

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  5. I have a case where a woman left Alberta while pregnant and moved to NL. Took up, when we do not know, with and old Alberta beau (new man), had the child and put new man's name on child and birth certificate. Mother is white. true dad is black. New man is white. Child is black. Mom even had paternity done to see if new man was dad! He is not dad. Mom proceeds to apply for custody, etc in NL and settle there. True dad upset and wants custody. I have not found a similar case. Do you have any leads?

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  6. Without prejudice correspondence continues!

    There must be some way to stop the abusive use of without prejudice? I am confident that this was not the intended spirit. In my mind, there are only a select few occasions that it should be used.

    I need a reality check on something. In the last correspondence from my former common-laws lawyer he made a statement that I felt was very unprofessional. The opposing council stated the following in his “without prejudice” correspondence, “If I understand the details correctly, as described to me by our client….” Where did this guy go to law school! Wouldn’t most lawyers that didn’t purchase their grades in law school get the facts straight before they send such correspondence, even if it’s “without prejudice”.

    Honestly, is this common practice to make such statements?

    From

    Absolutely frustrated.

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    1. I understand why the lawyer's choice of words would strike you as odd. Curiously, I use such language in my own letters, and say things like "I am advised by my client that..." and "I understand that..." I don't use this language because I'm trying to be cagey or don't get the facts. Instead, I use it because I'm trying to defuse tensions and be less confrontational by indicating that what my client has told me is only one side of the story.

      The problem is that when you're writing a letter about a problem, you need to try to be balanced and admit the possibility of another interpretation. For one person's "he pounded angrily on the door" there's another person's "I knocked." Same thing goes for "she was enraged and yelling at me" and "I was frustrated and raised my voice."

      When I'm dealing with a problem like this, I often find I get further quicker by not stating events in an absolute tone as if my client and only my client has the truth of things. Lawyers who write like that can be difficult to deal with on a file because their unequivocal language often creates more problems than it solves.

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    2. The story was a complete lie and I have facts (text messages) that prove her claim to be false. I am so tempted to share the statement with you. I realize you don't give legal advice on here, but could I put my case at risk sharing these details with you?

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    3. I wouldn't publish the statement that has you troubled here. This is a public forum, and anyone can hit the print button or take a screen capture.

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    4. A question about letters to court... if letters between lawyers, not negotiations but working out things like dates of Section 211, etc... can these letters be submitted to the courts? For example, if the letter from the other party is arguing for Section 211, then when its completed, doesn't want to pay for it, can we submit these letters to court as proof that they were agreeing to it?

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    5. Letters that don't make a settlement offer or a compromise of the sender's position can certainly be included as evidence. Although you should get some legal advice, it see no reason why letters like that can't go in. However, I would read the letter that says that they'll pay for the s. 211 assessment carefully... I can see offering to settle a contested issue like getting a s. 211 assessment by saying "I'll pay the up front costs now, and the court can decide how we'll split the expense at trial."

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  7. I am a Canadian and wish to give my two cents for what they are worth. The only justifiable use for "without Prejudice" is where you are protecting yourself from hidden contracts. Take your Drivers license as an example. The ministry requires you to sign your DL but the name is in capital letters. It resembles your name but it is not you. It is your STRAWMAN. It is a fictional PERSON created with your Birth Certificate. Anything that has to do with a Capitalization of your name should be signed with "With Prejudice" under your signature. This clarifies that you do not give up any rights under Common Law. This also means that you do not knowingly, intentionally and and voluntarily participate in any contract. There is much more to this that you will have to investigate.

    And to add the UCC 1-207 has been changed to UCC1-308 for our american friends down south.

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    1. Fantastic! Quite literally.

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    2. Wow, fantastic indeed.

      Its a bit stunning people still believe this strawman nonsense. Its just made up. Let me guess, the government has a secret trust account for every citizen accessed under their name in capital letters that holds billions the govt will collect in some secret insurance contract when they die... but if you wear a red fez cap to court, write 'without prejudice' and use alot of ::: marks on your documents, you can beat the court system... or something like that.

      There was a great (and very long) family law court decision recently in Alberta (Meades vs Meads) where the judge coined the term 'OPCA' to describe this phenomena: organized pseudolegal commercial argument. Its 180+ pages long (stunning for a family court decision) but hilarious in parts and sad to read that people actually go to court saying this stuff - its not real, its make believe law being sold to suckers/desperate people. Try this stuff in court and get slammed because its not real, let alone legally valid. Don't take my word for it - you can read a summary of it here and link to the actual decision:
      http://ablawg.ca/2012/10/30/the-organized-pseudolegal-commercial-argument-opca-litigant-case/

      At least this blog and post is working to give people real and useful explanations of what 'without prejudice' really means in litigation and court, where it counts.

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  8. I'm about to settle a debt but received an agreement to settle without prejudice. In my view, this is not worth the paper it is written on. Why would THEY need to write 'without prejudice' as this means that they can take me to court for the remainder, which defeats the purpose of a settlement. Why bother? I'd rather keep the money or spend it than hand it over only to find they take me to court at a later date.

    A settlement 'without prejudice' is nothing more than a down payment. It's a contradiction in terms.

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  9. There needs to be some reform around the use of "without prejudice" corespondence. It's out of control, I recently had a lawyer endorsing a client to be in contempt of court in without prejudice" corespondence.

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    1. That's hilarious! If that's how "without prejudice" is being used in your neck of the woods, I fully agree that reform is necessary.

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  10. What happens if you make a "without prejudice" proposal to someone (they refused it), to settle out of court, and then they go and use it as an exhibit to their affidavit after you have filed a Notice of Application in BCSC? Clear as mud??

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    1. I would probably ask the judge hearing the application to remove the proposal because it was made on a without prejudice basis.

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  11. Does the without prejudice work if it is stated ; if you dont pay me I will get A bailiff to remove you.
    This sounds more like extortion; if there is an attempt to extort additional money can the phase be used with no consequences

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    1. The law in Canada is that without prejudice protects a letter from disclosed in court until the hearing is over as long as the letter contains a settlement proposal. A letter that says "do this or else" isn't a settlement proposal, it's a demand. Writing "without prejudice" on the letter wouldn't have any effect.

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    2. I challenge you statement that:

      "To be even more clear, it is only the parts of "without prejudice" letters proposing settlement that are protected."

      I quote from:

      Susan Hosiery Ltd. v. MNR 2 [1969] 2 Ex.C.R. 27, [1969] C.T.C. 353, para. 8.

      "As it seems to me, there are really two quite different principles usually referred to as solicitor and client privilege viz: (a) (...) and (b) all papers and materials created or btained specially for the lawyer’s “brief” for litigation, whether existing or ontemplated, are privileged. …

      The first, (a), is what we would call “solicitor-client privilege” and the second, (b), is “litigation privilege”.

      http://www.thearcgroup.ca/documents/Holburn_paper_with_logo.pdf

      Quote from:

      Masnyk v. Lincoln Electric Co. of Canada Ltd., 2004 CanLII 27414 (ON SC),

      Relating litigation privilege to the needs of the adversary process is necessary to arrive at an understanding of its content and effect. The effect of a rule of privilege is to shut out the truth, but the process which litigation privilege is aimed to protect – the adversary process – among other things, attempts to get at the truth. There are, then, competing interests to be considered when a claim of litigation privilege is asserted; there is a need for a zone of privacy to facilitate adversarial preparation; there is also the need for disclosure to foster fair trial.

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    3. The article above is about the legal effect of marking a letter to an opposing party "without prejudice." The article is not about solicitor-client privilege (a lawyer's communications with his or her client) or litigation privilege (the material a lawyer generates in the course of a case).

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    4. What about blackmail?
      If someone's lawyer sends a "without prejudice" letter that basically says drop the case or you won't see the kids, would that still be inadmissible? It clearly demonstrates the person is more interested in getting their own way than in doing what's best for the children.

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  12. So when does privilege cease to exist? The courts must have determined certain rules through judgements where 'Without Prejudice' letters/documents may be entered into the court. For instance, I have a letter between two lawyers, my lawyer and the opposition lawyer, indicating that the parties have come to an agreement. Is that letter admissible? The specific reason is that as the terms of the agreement were what the parties acted upon for a few months and then the second party to the letter indicated to the court of no such agreement in existence.

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    1. What I think your'e talking about is when "without prejudice" letters can be used to prove that a settlement was reached. All I can say is that they can be used for that purpose. However, I can't give legal advice through this blog and you really should raise these questions with your lawyer.

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    2. Thanks John-Paul, I will consult my lawyer but also tend to find that I prefer to do some of my own research ahead of time, because much of this has to do with family law I find distrust with much of what I am hearing. I have read different places that the supreme court has set forth these circumstances of privilege. Are these be outlined within the 'Laws of Evidence within Canada'?

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    3. If you're looking for a text to read, Sopinka on Evidence is where I'd start and probably as a discussion about the use of without prejudice correspondence. However, it might be better to look at the cases where binding contracts are built from lawyer's letters negotiating and recording settlement.

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  13. Ia m making further comment on the following item; (Comment: Anonymous18 June, 2012 18:21 and Response: John-Paul Boyd18 June, 2012 18;59)

    John-Paul Boyd, I have recieved multiple "without prejudice" letters from the opposing side demanding that I surrender to their demands or they would not deliver our child to me. This is even after we had provided copies of the Court transcripts to them that supported our position. This is happening in our Capital city, Victoria! I am begining to believe that there really are no ruless outside of Court and I have certainly experienced a lack of consideration by the Courts regarding my job and the best interests of the children. What a shame, no wonder the number of people living single is increasing dramatically. As this trend continues the government will pass another Bill to extend their reach even further to extend their ability to transfer their unjust laws upon us! This just happened in November 2011, when they passed the new bill that treats property division in the same fashion with married and common-law relationships. This decision was entirely a financial decision for the government. Less and less people are getting married and more and more people are either living single or entering a common-law relationship. Unfortunately, the number of broken relationships continue to rise and this has put a financial strain on the government. Perhaps, the government should first force both Parties to work full-time before they start playing the role of the Lottery Corporation and unilaterally handing out money that they never worked for!

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    1. So sorry to hear that. I hope your issue is resolved with no physical/mental stress on your child

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  14. Its still kinda unclear .... If a party has made a offer that was not reasonable or sincere in nature and wanting it to be removed from affidavit matters... I understand if they want to take a different stance in there response and such.... however they included whole pile of unreasonable requests .... It seams like it's a bluff bully attempt to remove all evidence from court in such case your only case would be I want this and this. Which I don't view as fair.... Because length of time and number of letters would paint a picture.

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  15. Dear Mr. Boyd,
    Thank you for your excellent definition of "without prejudice". Unlike most legal definitions, yours is understandable by we laypeople and is much appreciated.
    I wish there were publications through which the general public could educate themselves about Canadian law. Heck, even wading through a series of random legal topics on a blog or from a newspaper column archive would be better than nothing. As it is, only the very poor or the wealthy can avail themselves of legal advice, despite often being in need of same.
    Thanks again,
    Anonymous #something-or-other

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    1. Thanks for your kind words, I appreciate them very much. It is hard to find good, plain-language information about the law. You could take a look at Clicklaw's collection of wikibooks, found at http://wiki.clicklaw.bc.ca/index.php/Main_Page, as a start. The website of the BC Legal Service Society, at http://www.lss.bc.ca/, also has a lot of information.

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  16. I have recently contained interim sole guardianship "without prejudice" of my 3 children (I live in BC). I am not clear on exactly what that means. While we were at court waiting to go to trial the children's father had to ask me our daughters name, in which he had gotten it wrong. Then shortly after that we had come to an agreement on the interim sole guardianship "without prejudice" and an amount set for child support (which he hasn't paid in 3 years). I feel that my case was won but then I don't at the same time. Maybe I'm just not clear on the "without prejudice" part of the order.

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    1. In your case, "without prejudice" probably means that the children's other parent has been removed as the children's guardian without prejudice to his ability to ask to be reappointed as the children's guardian in the future.

      In most cases, if you want to ask to change an order about children you have to prove that there has been a change in circumstances. If you can prove that there has been a change you can ask the court to make a new order; if you cannot prove the change in circumstances, the court won't change the order.

      Normally, the children's other parent would have to prove that there had been a change in circumstances before asking to be reappointed as the children's guardian. Because of the without prejudice order that makes you the children's only guardian (and removes him as a guardian), he can ask to be made a guardian without having to prove that there has been a change in circumstances.

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    2. That sucks!

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  17. Can a lawyer use his own "without prejudice" letters in Court, if he blacks out the other party's proposal but maintain this own proposals?

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    1. Yes. Sort of.

      A lawyer would mark her own letter "without prejudice" to protect her settlement proposal from being disclosed in court. If she didn't mind her settlement proposal from being revealed (I will do this where I believe my settlement proposal is genuinely and objectively fair) she could attach the letter to an affidavit or do whatever she wished with the letter.

      There's an exception to this. The rule about what's without prejudice and what's not also protects the whole chain of letters talking about potential settlement compromises. In other words, if the lawyer's letter reveals the other side's settlement position, her letter would be protected from being disclosed. This includes the lawyer's comments on the other side's position, not just her statement of her own position.

      Of course, if the lawyer is neither stating the other side's position nor her comments on the other side's position, I have to wonder why she 'd want to put the letter into evidence at all. It would be saying "I said this and here's my letter showing that I said this," and I don't know why you'd bother unless someone was arguing about whether the lawyer said that thing or not.

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  18. Dear John-Paul,
    Your name has come to my attention by a family member who is a lawyer, but deals with the complaints made against lawyers. She HIGHLY recommends you! Unfortunately by the time I had realized that you're the best around, I was knee deep with a different lawyer. I have since released my lawyer due to high costs, and wasted time. But I often times find myself reading from your site/blogs/and wiki-law. I have found this article particularly helpful as I am now communicating directly with my ex's lawyer. I thank you many times over for being as open book as you can for people like me. If I ever hear of anyone needing a good, fair, honest and reliable lawyer I will most certainly direct them to you! Wishing you many more years of continued success and happiness - A.O

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  19. Dear John-Paul,

    I am a junior family lawyer doing research on a file that involves this issue. Can you cite your authority for the statement that:

    "The parts of a "without prejudice" letter that don't talk about settlement can be used in court, as long as the parts which do talk about settlement are blocked out."

    Please? :) In my file the opposing party made an admission in a letter (that was not actually marked "without prejudice" but which opposing counsel is claiming as privileged because it was made in the course of settlement discussions.

    It is unclear from reading the case law where the precedent is for admitting part of a letter in which a settlement offer is made, as long as the settlement offer itself is blocked out.

    Thanks! I very much enjoy and appreciate your blog and hope you are most well.

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    1. I'm glad you've found my blog useful. Hopefully it won't surprise you that I don't recall where my source material came from for a post that I wrote about five years ago. There's lots of court of appeal authority on the issue, and once you find the case that says you can't reproduce letters that specifically discuss compromised aimed at settlement, it stands to reason that the parts of a letter that don't talk about that can be reproduced as per usual. You might also find something useful in CLE's Sourcebook or Family Practice Manual. If you still have no luck you call call my at my office on or after March 31st.

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  20. I work in a bank and recently the IRS contacted me to get information about one of our account holders. When I looked in the account's file, I saw that the client had marked WITHOUT PREJUDICE at the top of every page on their application, and they had signed the application with their name and WITHOUT PREJUDICE. Based on my limited knowledge of what those words mean, I understood that the information in the account is not presentable to any third party. I told the IRS that I could not give them any information about the account holder because my bank would be held liable. They never got back to me.

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    1. Writing "without prejudice" on documents doesn't automatically make them non-compellable, either in court proceedings or to government agencies with a statutory right to the documents. I like what you did, 'cause if I was your client, I'd really appreciate that. However, "without prejudice" is not a magic incantation that lets you get out of contracts or makes documents private or non-compellable.

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  21. My ex wife and her lawyer sent my lawyer a letter to give additional intern access before we go to a case conference. My daughter has been my world since she was born not a day that has gone by in which I have been away from her.. but since my ex wife has moved out she has get rules n dictates when I can see her. She gives me 2 hrs Tuesday n friday and every other saturday from 6pm pm to 11an Sunday morning, which she does not follow through with.. she also refuses to disclose her address as a way to have the upper hand and drop off our daughter when she pleases. The letter which was sent as da interm agreement stated Tuesday and friday as stays quo and every other Saturday from 11am to Sunday at 11am... n states without prejudice.. please help me understand what this means. ... considering the Saturday i am to have our daughter she bring her late going against her agreement in which her and her lawyer sent to mine. Please help me understand y without prejudice was written.

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    1. I'm guessing that your wife is offering you additional time with your child as a gesture of good will, but doesn't want to be stuck with the arrangement if things don't work out for her or your child. Saying "without prejudice" is meant to stop you from saying that you and she had a deal that she's stuck with.

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  22. Jp Boyd, I am not sure if you are still following this thread or not, but I was wondering. If a self represented litagant was to add a "with prejudice" draft of an agreement as a paragraph with an exhibit attached in an affidavit, and the other partys lawyer planned to have the paragraph striken out, how would one argue to keep the 'without prejudice' in the affidavit..is that even possible...or should one just given up and agree to have it removed.

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    1. Well normally the whole point of writing "without prejudice" on a letter is to stop a judge from seeing it until the case is done. The protection of writing a letter on a without prejudice basis would also stop a paragraph of that letter from being quoted in an affidavit... unless the paragraph does not contain a settlement offer or otherwise compromise the other side's position.

      In other words, say you're arguing about a car you bought that turned out to me defective, and the other side writes you a letter saying "I'll give you half your money back," and then asks you whether you liked the last episode of Breaking Bad. You could quote the part about Breaking Bad, but you couldn't quote anything about the offer to give you some of your money back.

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    2. Ok well I suppose I wont argue it come next family day. I added a paragraph (not knowing what "without prejudice" meant) with a copy of the drafted agreement, that included a paragraph stating I had sole gaurdianship. Went I decided to take the matter back to court, the other party decided to apply for sole gaurdianship. I wanted to prove his motive for sole gaurdianship was not done in the best interest of our child, but rather an attempt to gain control and was a consequence of his anger because I decided to have a judge make the decision. Accourding to the law I have full gaurdianship (we were never together, he has never lived with me or our child, has never regularly cared for my daughter, and has only met her a handful of times) although I had another lawyer tell me this law only applies to step parents and biological parents both have gaurdianship unless a court decides otherwise. I dont know...hopefully things workout. Hes just mad because he is ordered to pay child support. Yeesh what a mess

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  23. This is great by the way, to be able to access a conversation with an awesome lawyer.

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  24. Mr. Boyd.
    Perhaps this is not such a simple of a question to ask, however here goes.
    Could a "without prejudice" letter that requests board members, that are identified by name in the letter and circulated by the creator of this letter, be used at the BC Human Rights Tribunal.

    The board members have been asked to step down by another entity as part of the negotiations, However no reason has been given and we suspect it is a attempt at a hostile takeover of our board.

    thank you in advance for your opinion.

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    1. I'm sorry, I cant give legal advice or legal opinions through this blog. However, if you read the article above, I explain that "without prejudice" only protects settlement discussions from disclosure. Writing "without prejudice" on a letter asking members of a tribunal to step aside, on a letter complaining about MasterCard's interests rate or on a letter to a politician doesn't stop the letter from being used for other purposes.

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  25. Mr Boyd...

    Under what conditions can a father get split 50/50 custody and how often does it occur, especially if he has been an active father since the birth of his daughter?

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  26. I wrote about this is a couple of posts at the end of December 2013. Give those a read.

    In general, shared parenting or shared custody, works best for children when their parents were both involved in their care prior to separation, live close enough to each other and the children's school so that the kids don't have a lengthy trip between homes, get along well enough with each other that they can discuss and cooperatively resolve parenting issues as they arise, and there aren't problems like addiction, abuse or controlling behaviours. I'm sure there are other factors, including those which make some of the factors I've listed less or more important, but that's roughly what the court is looking for.

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  27. Dear Mr. Boyd,
    If an unrepresented litigant uses without prejudice discussions, letters, or drafted separation agreements in an affidavit for a family court matter in BC...without knowing what "without prejudice" means, could that litigant be subject to compensation to the other party for using the "without prejudice" documents?

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    1. Normally, the only sort of "compensation" that might be ordered would be an order that the other party's costs be paid. The new Family Law Act, however, gives the court a lot of power to order the payment of fines and repayment of expenses incurred by someone's misbehaviour.

      However, before the court gets to that point, it would normally need to be convinced that the misbehaving person knew that what he or she was doing was incorrect and had been previously warned against that sort of behaviour. The court usually won't make orders for the payment of fines, costs or expenses except as a last resort.

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  28. what does it mean when a child support order says the person must pay the other person without prejudice?

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    1. That's something you'd seen on an interim or an interim interim order, and means that either person can apply to change the order without having to show that there has been a change in circumstances... which you normally have to show to change an support order. The court would make an order like that if the amount of the payor's income hadn't been determined as well as the court would like, or if it wasn't clear how much time the payor might have with the children and perhaps the payor might be entitled to a reduction in the amount of support.

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  29. Thank-you.
    Thank-you very much for the amazing resource of information provided Mr. Boyd.

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  30. Hi Mr. Boyd. Here's a scenario - I continue to receive "without prejudice" letters which state the terms are "non-negotiable". Would this not fail the test for a negotiation between two people?

    The challenge I encounter is I receive these terms and conditions which I agree to in order to save conflict only to receive a final offer I refer to a "scuttle offer" which rescinds all previous offers and is an offer not accepting my offer to accept conditions.

    This has gone on for 4+ years and I have been dragged through court over a dozen times. I have had to request the judge to be locked down so that my court harassment concerns can be dealt with. The judge has stated he will impose penalties for any misbehaviour. My ex has a large support for their legal fees while I have now had to represent myself due to the weekly / bi-weekly letter or affidavit.

    I want to show these offers which go sideways when I meet the conditions to show the level of misbehaviour and misuse of the courts as they also talk in contradiction to court orders - as exhibits. I am constantly reminded by the other lawyer of the "without prejudice" clause.

    My goal is to resolve and finalize while the other is employing a tactic of drawing things out and continuing to provide false offers for unknown reasons other than causing further conflict.

    And insert your genius feedback. Thank you.

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  31. The "without prejudice" label is meant to keep confidential, until the trial is over, offers to settle and issue or a case. Even a "non-negotiable" settlement offer is still a settlement offer. I appreciate your frustration, but I expect that the proposals would be covered by the limited confidentiality of a without prejudice letter.

    However, there are two options that may interest you.

    First, if you unconditionally accept an offer and say so to the lawyer, a binding contract has been formed that the lawyer can't wiggle out of. But, like I said, it has to be a complete, unconditional acceptance. If the lawyer later tries to back out of the agreement for some reason, you can show the letter to the court (plus yours accepting the offer) to show that a settlement was reached.

    Second, you can use the letters, but only once the trial is over. The point of "without prejudice" settlement proposals is not just to keep offers to settle secret until after trial, it's also so you can show the judge how reasonable you were being in trying to settle things and avoid trial. If it's true that the sand keeps shifting under your feet, if the lawyer tries to argue that his or her offers to settle were reasonable in order to ask for costs against you, you can trot out all of the without prejudice letters (and the ones rescinding them) to show how unreasonable the other side was being, and ask for YOUR costs. That would be fun.

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  32. Perfect thank you. I appreciate all your genius. It's option #2 which we are specifically dealing with. We asked for a variance with payment terms and offered more money over term in hopes of resolving.

    Thank you again for being a champion of what's fair vs winning and more importantly what's in the best interest of the children.

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  33. Hello Mr. Boyd,

    Thanks for writing the above, I still find Without prejudice a little confusing, but I think im starting to get it now.

    If I could ask a question about the matter. If I state that I will not accept any without prejudice emails, and I am sent one. Am I obliged to accept it and abide by "without prejudice", or am I able to ignore it?
    If a chain of emails has been started "With Prejudice" does that pass its effect on to following correspondances in that chain?

    Thanks again for taking the time to write the above.

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    1. You gain nothing by saying you won't accept without prejudice correspondence. That's saying you won't accept letters proposing settlement, and if a judge learns that you weren't willing to think about settlement, that could result in an award of court costs against you.

      All that "without prejudice" does is to protect the parts of correspondence discussing settlement and proposing compromise from being shown to a judge until the case is over. That's it. It doesn't protect the parts of letters that talk about something other than settlement.

      "With prejudice", on the other hand, doesn't mean anything... or do anything. It just says to the recipient that you're serious about showing the letter to the court.

      You should speak to a lawyer in your neighbourhood to get some proper legal advice about these issues.

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  34. Hi, Mr. Boyd!

    My separation agreement states that "The parties shall share equally the Christmas holiday, summers, March Break, and all other holidays including statutory holidays, and P.D. days". Are Good & Holy Friday (Easter Good Friday) and Pascha (Greek Easter) considered holidays? School still runs on my Good Friday. My separation agreement does not cover Mother's Day, Father's Day, any of our birthdays, etc. My view is that these are days of significance, not holidays and that they are not necessarily divisible.

    Last year Easter and Pascha fell on the same weekend and my ex did not equitably divide Holy Friday or Pascha. He divided it as a school holiday where 3 of the 4 days were divisible and Saturday was not. In short, I did not see my son beyond 9:00 a.m. (shortly after he woke up) on Friday and I got him back on Pascha Sunday 2 hours before his bedtime. This year Pascha falls on my weekend. With my standpoint being that Holy Friday and Pascha are days of significance since this is how my ex treated them last year, I have offered my ex without prejudice the same that he offered me last year (with the expectation that he pays those hours back on his Easter weekend since this year Easter falls a week earlier and we are dividing my time, not a school holiday). After countless "without prejudice" e-mails from him countering my proposals (option 1 & 2), he has contacted his lawyer who is threatening to take me to court citing that I am breaching the court order. Is his lawyer correct? If so, didn't my ex breach the court order last year?
    a) he is trying to separate the 2 weekends whereas I have offered the proposal as a whole (he needs to agree to the terms as a whole, dealing with Easter weekend and Pascha) and
    b) he is arguing that these days are holidays, not days of significance.
    He has contacted his lawyer to communicate with me that if I don't respond by a certain date, he will take me to court.

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    1. British Columbia's statutory holidays are defined at s. 29 of the Interpretation Act, and are: Sunday, Christmas Day, Good Friday, Easter Monday, Canada Day, Victoria Day, British Columbia Day, Labour Day, Remembrance Day, Family Day, New Year's Day, December 26, and "a day set by the Parliament of Canada or by the Legislature, or appointed by proclamation of the Governor General or the Lieutenant Governor, to be observed as a day of general prayer or mourning, a day of public rejoicing or thanksgiving, a day for celebrating the birthday of the reigning Sovereign, or as a public holiday."

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  35. Great article, thank you!

    What if there are no actual settlement negotiations happening, nor any open court applications? Can emails containing court threats and defamatory statements be protected simply because it says "without prejudice"? The party that sent these emails would likely try to argue they are protected because he is trying to propose changes to our orders, and therefore he would try to claim they were settlement negotiations (due to conflict instigated by him!). One of his proposed changes to our orders (which have communication restrictions in place due to history of family violence) specifically is wanting an agreement that all of his emails be destroyed and not retained! He claims this is a violation of our terms compelling parties to be civil and respectful! This party has been self representing, and despite our orders being not reviewable for a couple years, he continues to make court threats and attempts to change the orders. It seems to be a game of sorts for him to repeatedly contact my lawyer, perhaps trying to drain my finances on legal fees. He is getting very bold....even writing my lawyer to tell him how he "vomited thoughtless words without merit" and a bunch of other really bizarre and bold comments. It was very strange indeed. Yet he writes "without prejudice" on top of these weird emails. Is he actually protected from them being used in court?

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  36. If there are monetary terms being discussed via text message can those terms be excluded from opposition affidavit/trial because they are part of a settlement proposal?

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    1. That is an awesome question! I think that if it's clear from the texts that you are trying to negotiate settlement, that those texts would be privileged settlement discussions that should be excluded from evidence at trial.

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    2. Are you still following this thread? I'm surprised no one has asked my question, that I've read.

      I came across exceptions to "without prejudice". That if there was undue influence, or misrepresentations, that the correspondence could be entered anyway.

      And what qualifies as a settlement? In my situation, we already had a settlement, in our property and separation agreement. He had been paying. Everything was fine. I contacted him to say, "Hey, I'm going to be enrolling in school again to finish my degree. It's at this different institution now, rather than the one at which you were paying. It's about the same amount. Are you prepared to pay [because you've been saying you have no money and I need to make sure before I enroll]?" He got his lawyer involved and she sent a letter that did not say "without prejudice" and it included one misrepresentation of the schooling I had already done, and only offered me $600 for all my books when that's about how much they are per semester and our Agreement stated that he was to pay for all my books—no limit put on the amount. The same lawyer writing me was the one who wrote the agreement. And it said he would only pay for one more year. This was outrageous, as we already had an agreement. Ever since then, she has been offering less and in another agreement, offering something almost fair except only if I would sign a waiver for any damages to me for not getting my degree. I want to argue that while she was trying to settle on something less, this is not fair as I was never negotiating. I wanted him to honour our contract. And the very fact that he was unwilling to—and these emails are my evidence—is why I haven't been able to get my degree (loans are not an option) and why I have been unable to find half-decent work, and why my income will continue to be low for a while and THEREFORE why he needs to keep paying my spousal support at the same rate. I can't argue that without those emails! And I couldn't hire a lawyer to deal with it. And it's taken me years to figure out how to pursue this in court on my own. And she can just get away with robbery and refusal to honour a contract for bogus reasons, because she is claiming now that it was a settlement offer? You shouldn't be able to offer a settlement ON A SETTLEMENT. It already was a bleeping settlement.

      And child support. He owes it. He's said that his income will be close to historic rates by 2017. That seems like something that should be included, as this is what a judge will want to know in a child support hearing anyway. HOW MUCH MONEY DO YOU EXPECT TO MAKE. That's a question that is asked on the child support application. So, they shouldn't be able to strike it just because they put "without prejudice" on the correspondence.

      No?

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  37. What if you are without council and you have text messaging between your ex and you are trying to settle ? Then when you talk to a lawyer and they advise againest it because there has been no financial disclosue . So almost 2 yrs later things are still not settled and your ex says you promised me you would settle on x amount . How would the judge view this ?

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    1. The judge would view this poorly. Financial disclosure is mandatory, and in most cases the court will be happy to make orders forcing disclosure to be made. Settling without disclosure is risky, as you won't know how the settlement compares to the amount you're entitled to.

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  38. So a without predudice letter that contains a offer on one page but on second page contains explanations of why the offer is low like not working etc and you had proof this isnt true could you use the second page ?

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