BE v DE

The without prejudice principle requires a bona fide attempt to resolve a reasonably coherent and definable dispute. The question whether communications were intended to be without prejudice is objective. The court examines the surrounding circumstances, including how the occasion would reasonably have been understood by both parties. The protection does not arise merely because one party privately intended to settle financial matters. Where the protection applies, referring to the fact of a meeting or document does not necessarily waive it. Waiver may arise where a party relies on his own account of the purpose and bona fides of the negotiations, while seeking to prevent meaningful examination of that account.

The husband applied for the wife to redact references in her jurisdiction statement to a dinner meeting and a draft separation agreement produced by him. He argued that the meeting and document were protected by the without prejudice principle. The wife contended that there was no dispute, that the occasion was not objectively a settlement negotiation, and that any protection had been waived.

The issue arose in contested divorce jurisdiction proceedings. Both parties had issued protective petitions in different jurisdictions, without informing the other. The court had to determine whether the meeting involved a sufficiently defined dispute and a genuine attempt to compromise it, and, if so, whether the husband had waived protection by relying on his intention to remove financial issues so that the marriage might be restored.

1. Application dismissed. The wife was not required to redact her statement and the exhibit was not removed.
2. The without prejudice principle applies to communications made in a genuine attempt to settle a dispute. A dispute need not have reached legal proceedings, but there must be a reasonably coherent and definable issue or issues. Reciprocal differences or marital grievances alone are insufficient.
3. Whether communications were intended to be without prejudice is an objective question. The court must assess the surrounding circumstances and how the occasion would reasonably have been understood. The subjective intention of the person seeking protection is not decisive. The words “without prejudice” are unnecessary, although persuasive.
4. On the evidence, there was no sufficiently definable dispute. The parties were not addressing their undisclosed petitions, and their protective nature did not establish that they were negotiating financial claims. Alternatively, it was not clear from the surrounding circumstances that both parties understood the dinner to be a settlement meeting or that the husband was making a bona fide attempt to settle rather than seeking to impose terms.
5. Waiver did not arise merely because the wife had earlier referred to the dinner and the production of the document. Those references did not disclose its contents. However, if privilege had applied, the husband’s later assertion that his purpose was to remove financial issues so that the marriage could be repaired opened his bona fides to legitimate examination. It would have been unfair to permit him to rely on privilege to prevent meaningful cross-examination while deploying that assertion in open evidence.