Document Disclosable When No Dispute

December 10, 2014

Document Disclosable When No Dispute

When an informal conversation over dinner in a restaurant that included a proposed agreement between a divorcing couple did not lead to a settlement, the court was faced with a decision as to whether matters discussed during the conversation could subsequently be disclosed in evidence.

The circumstances arose when a couple who were divorcing had met for dinner to discuss the settlement of their financial affairs.

At the meeting, the husband prepared in written form a proposed agreement which he gave to his wife to consider.

Among the statements in the husband's proposal was one that his wife was currently living in London. This was significant, as in the later legal argument, the husband claimed that she was not habitually resident in the UK and thus the English court did not have jurisdiction to hear the case concerning the financial settlement. He alleged that the wife was 'forum shopping' – seeking to have the case heard in the UK because the courts here are among the most generous for spouses in such cases.

The wife stated that she had attended the dinner in an attempt to patch up their marriage if possible and that she was not expecting any form of legal discussion. The husband claimed his intention was to settle financial matters with his wife.

Both had attended the meeting having filed preliminary 'protective' legal proceedings in their preferred legal jurisdiction, but neither had told the other that they had done so. Such filings are made to 'set the ball rolling' in the jurisdiction of the individual's choice. The case will normally be dealt with in the country in which the first action is filed.

The husband argued that the proposed agreement was 'without prejudice' and could not therefore be given in evidence in court proceedings. The without prejudice rule excludes from evidence, as Mr Justice Rooney put it, 'written or oral communications made in a genuine attempt to settle a dispute between the parties'.

The decision turned on the nature of the meeting between the couple and, crucially, the fact that there was as yet no dispute to settle, as neither was aware that the other had filed protective proceedings.

Accordingly, the document could not be privileged as there was no dispute to which it related and, even if there was, it was not clear that the couple had met in order to try to settle a dispute.