Questions over Without Prejudice

[quizer]

Hello to all. I am representing my self in our divorice case.I want to no how, Without Prejudice works in family law.

My lawyer sent a offer of settlement to my ex's lawyer and they never replied to it.All they did was serve court papers on me.My lawyer and i both agreed it was a good offer.(about settling spousal support).So off to court we go.

Now that i am representing my self can i show that letter of offer or talk about that offer to the judge.

How i understand it is.If i send a letter of offer without prejudice on it i can still use it because it is my letter.But if her lawyer sends a letter that has without prejudice on it i can't mention or show his letter to the courts.

If anyone knows the right law about this i would really appriciate the help.

Thanks!

[Mess]

I am not a lawyer.

Without prejudice only applies to negotiations. It doesn't protect you from anything criminal, or if you are trying to defraud your ex. So you can't just write anything at all and put "Without Prejuduce" at the top and think it doesn't count.

It applies to negotiations only. It is not an iron-clad protection. If you write "I realize I owe you $29,000, can I pay you off $1,000 a month?" you aren't protecting yourself by putting "Without Prejudice" at the top. You have just admitted to the liability. If you go to court and say "I don't owe them $29,000" then they can and will produce your letter where you admitted it. What you would write instead is along the lines of:"I do not acknowledge your claim, however in the interest of avoiding legal costs and stress I am willing to settle for an agreed amount. I am willing to offer $1000 per month in payment etc etc". This should then have "Without Prejudice" at the top. It is a clearer protection.

Regarding your question of whether you can produce your own document, that is dodgy as I understand it, but you could if it is somehow relevent to your case. I can't really see how you would make it relevent. You send a document saying "This isn't true". That is just your word. In court you would submit an affidavit anyway swearing the same thing. The letter you sent does not add any weight to your affidavit.

A situation I can imagine is, your ex is testifying or swearing that "He has been admitting this all along...." In this case your letter during negotiations might be relevent, just to refute that specific claim that she is making, that you had admitted something. However mostly this is still "He said/she said" but you can show a bit of paper trail at least. On her side it would just be her word.

I think you want to show that you were offering to make a reasonable settlement and she turned you down. This is not relevent to your trial. It would be relevent to claiming legal costs at the end of your trial. It is absolutely normal to use "Without Prejudice" documents to show how negotiations had gone, and to try to claim costs. In this sense, yes you can use your letters, you can also show your ex's letters.

Again, I am not a lawyer, this is just how it was explained to me.

[clx4]

settlement offers, closed mediation and 'protected' information

I am confused on this issue.

I do not want to hold my ex to any offer. Only an admission that they did respond with counter offers, which were far from satisfactory and that the contents were contrary to the ideas set out in the divorce act.

Closed mediation turned out to be a costly disaster. Much of the actual "evidence" wound up being presented there.

Am I prevented from using evidence filed in the mediation brief, or does it stand independently on its own? I need to establish that my ex acted knowingly and in bad faith to avoid their responsibility. In particular by using mediation and settlement offers as effective delay tactics and means of ensuring evidence could not be used against them.

How much of this can I bring up? There certainly is an issue of costs, but it is the critical ten months of delay and hardship that is the issue.

[mom2three]

Hello to all. I am representing my self in our divorice case.I want to no how, Without Prejudice works in family law.

My lawyer sent a offer of settlement to my ex's lawyer and they never replied to it.All they did was serve court papers on me.My lawyer and i both agreed it was a good offer.(about settling spousal support).So off to court we go.

Now that i am representing my self can i show that letter of offer or talk about that offer to the judge.

How i understand it is.If i send a letter of offer without prejudice on it i can still use it because it is my letter.But if her lawyer sends a letter that has without prejudice on it i can't mention or show his letter to the courts.

If anyone knows the right law about this i would really appriciate the help.

Thanks!

If I am understanding you correctly, it is your assumption that the party that makes the offer can produce it as evidence. If I am correct, I ask then what is the point of "without prejudice"?

"Without prejudice" is merely a phrase that can have the effect of excluding a document as "evidence", which you want to use it as. Communications between parties that are bona fide (written in good faith) are not admissable as evidence.

They do serve a purpose, however. Everyone thinks their "offer to settle" is a good one and have the insatiable desire to show a judge how reasonable they are being. You can have your say once the trial is all over, judgement has been handed down and the judge asks for submissions for costs. In the submissions for costs, you can produce, as evidence, your "without prejudice" offers to settle. Your offer will be considered at this time.

The intention of an assessment of costs, considering offers to settle, is to ensure that parties think carefully about rejecting an offer as a reasonable offer can have costs consequences; if an offer that is rejected turns out to be either as good as or better than the order made by the courts, the "winning" party is entitled to costs. Those costs are determined based on many rules as to when the offer is made, expiry dates etc.

[Mess]

Look, the basic idea of "Without Prejudice" is so that two parties can try to negotiate a settlement without worrying about admitting liability.

I explained this thoroughly and hopefully clearly in my original post here. It is so you two can negotiate without without feeling paranoid.

In court it doesn't matter a rat's ass if you made an offer to settle or if your ex was dragging things out UNTIL YOU ARE AT THE END AND DETERMINING COSTS.

If they were dragging things out it doesn't affect equalization, it doesn't affect support. It MAY affect the course of custody if dragging things out resulted in one parent achieving a status quo custody. This is why access needs to be addressed immediately, most often in an emergency motion, if one parent is witholding access or about to move with the child, etc. However in this instance the last thing you should be worried about is whether "Without Prejudice" is written on a document.

I do not want to hold my ex to any offer. Only an admission that they did respond with counter offers, which were far from satisfactory and that the contents were contrary to the ideas set out in the divorce act.

Why on earth do you care? It is not relevent to your trial. At your trial you are seeking equalization amounts, support and custody. Offers and counter offers are NOT relevent to these arguments. It is based on math.

[Tayken]

Hello to all. I am representing my self in our divorice case.I want to no how, Without Prejudice works in family law.

My lawyer sent a offer of settlement to my ex's lawyer and they never replied to it.All they did was serve court papers on me.My lawyer and i both agreed it was a good offer.(about settling spousal support).So off to court we go.

Now that i am representing my self can i show that letter of offer or talk about that offer to the judge.

No. There are rules that govern the settlement process. If a judge requests any offers to settle during a motion or trial that has been presented you can present them. Otherwise they are offers to settle. They are usually only considered after a decision is made for cost award in the matter. Should your offer be the one closest to the judge's decision you will be given your costs back for having your time and money wasted by the other party.

The reason you CAN'T give the judge the offer to settle as it would PREJUDICE his/her decision. (See how "prejudice" works?)

Good Luck!
Tayken

How i understand it is.If i send a letter of offer without prejudice on it i can still use it because it is my letter.But if her lawyer sends a letter that has without prejudice on it i can't mention or show his letter to the courts.

If anyone knows the right law about this i would really appriciate the help.

Thanks![/quote]