If you have a legal issue with someone and you're having settlement talks (trying to sort out the problem with each other), the law says that usually your communications (anything you say or write to each other) can't be used against you in court:
- the rule about this is called settlement privilege, and
- the communications that can't be used against you are called privileged.
This is different from normal evidence rules. It's based on the idea that if people don't have to worry that what they say might be used against them later, they'll:
- feel able to say what they think, and
- be more likely to reach agreements.
When are communications privileged?
Not all communications are privileged. There's a two-part test you can use to work out if your communications are privileged or not.
If you can answer "yes" to both points below, your communications are privileged:
There must be a dispute that could be the subject of a court case between the two people.
- This doesn't mean you need to have started a court case. It just means you and the other person have a problem about something and could end up in court if you don't sort it out yourselves.
- Lots of people reach settlements without even starting a court case.
The purpose of the communication must be to try to reach a settlement.
- This means that you're trying to make contact with the other person to sort out your problem.
- It includes:
- any invitation to start negotiation or settlement discussions (when you ask the other person if you can talk about things), and
- everything you say and write when you're talking to the other person about how to solve the problem.
You can use this two-part test if:
- you and your spouse have separated, and
- you're having issues about:
- support, or
- property or debt division, and
- you want to sort things out without going to court.
What kinds of communications can be privileged?
Your communications about the problem are privileged if you can look at the two-part test and say that:
- you have a problem with someone that a court might have to sort out, and
- you've spoken or written to the other person because you'd like to try to sort out the problem.
Anything you say or write to each other about the problem counts as communication. For example:
- anything you say to each other:
- on the phone, or
- face to face, and
- anything you write to each other:
- in a letter,
- in a text,
- in an instant message,
- in an email, or
- in any other type of document or online communication channel.
What happens in mediation or collaborative law discussions?
If you go to mediation with a private mediator or a family justice counsellor, anything you and the other person say in mediation is privileged.
If you use a collaborative family law process, anything you say (or anything anyone else who's there says) is also privileged. This is because the main aim of a collaborative family law process is to reach a settlement.
What does "Without Prejudice" mean?
Lawyers often write the words "Without Prejudice" at the top of letters or emails they send during settlement negotiations (when the people involved in a case are trying to sort things out). This is to let you know that the information in the letter:
- shouldn't be used as part of an effort to reach a settlement, and
- shouldn't be used as evidence in court.
But just writing the words "Without Prejudice" on something doesn't give you settlement privilege. The document still has to pass the two-part test we talked about above.
And if “Without Prejudice” isn’t written on something, it doesn’t mean it’s not privileged.
If the words "Without Prejudice" aren't written on the document but it passes the two-part test, it's covered by settlement privilege.
Exceptions to settlement privilege
Sometimes settlement privilege won't be applied. For example, communication won't be privileged if:
- one person says there's an agreement but the other person says there isn't
- you and the other person can't agree about what the agreement means
- one person says or writes something that's a threat
- one person committed fraud to get a settlement
- what one person says or writes:
- is illegal, or
- shows they plan to commit criminal acts
Can you give up privilege?
If both people who're disagreeing waive (give up) their privilege, their communications can be used as evidence.
If you talk about privileged communication in your affidavits, you'll waive your privilege indirectly. This means you haven't said you want to waive your privilege, but you've lost it by talking about the privileged information.
If this happens, the other person could object to your affidavit and get it kept it out of evidence.