Q&As

Can admissions contained in 'without prejudice' documentation in children matters be admissible ie where correspondence is marked 'without prejudice' will that have an absolute effect in children cases?

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Produced in partnership with Kirstie Danton of St Ives Chambers
Published on LexisPSL on 13/09/2016

The following Family Q&A produced in partnership with Kirstie Danton of St Ives Chambers provides comprehensive and up to date legal information covering:

  • Can admissions contained in 'without prejudice' documentation in children matters be admissible ie where correspondence is marked 'without prejudice' will that have an absolute effect in children cases?
  • Without prejudice communications
  • Children matters, conciliation, mediation and arbitration
  • Settlement conferences in public law

Without prejudice communications

Without prejudice immunity is based on the public policy that parties should be encouraged to settle litigation, or disputes which may lead to litigation. It is never absolute and the case of Unilever PLC v The Proctor & Gamble Company sets out some of the exceptions to immunity which include:

  1. where there is an issue over whether the communication resulted in a concluded agreement

  2. where a party seeks to set aside an agreement concluded in without prejudice communications on the grounds of misrepresentation, fraud or undue influence

  3. where excluding the evidence would mask perjury, blackmail, threat or other unambiguous impropriety, and

  4. where the communication or document constitutes evidence of delay or acquiescence

Not everything termed without prejudice is necessarily so. The communication or document must contain or amount to a genuine attempt at resolving issues and must not fall within an ex

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