'Without Prejudice' Offers

what is a “without prejudice” offer?

Put simply, “without prejudice” means that any statement made by a party to try to settle a dispute will not be used against them in court. For an offer to be “without prejudice”, it must be considered a genuine attempt at settlement.

In divorce proceedings, a “without prejudice” offer is a confidential proposal made during negotiations which cannot be used as evidence in court. This encourages open and honest discussions between parties as they are able to negotiate freely without fear of prejudicing their case.

A “without prejudice” offer is very different to open offers, as open offers are shown to the court.

If the parties are unable to come to a settlement and the case proceeds to a contested final hearing, the presiding judge should be unaware of the parties’ “without prejudice” offers, and so the judgement cannot be influenced by them. However, there is an exception. If the statement "without prejudice save as to costs" is used, it signifies that while substantive discussions and proposals made during negotiations are prohibited from being utilised in court, the court may consider them when calculating legal costs at the end of the case. Such offers made “without prejudice save as to costs” are called ‘Calderbank offers’.

This principle is used more frequently in civil proceedings over family proceedings. This means that whilst the substantive discussions and offers made during negotiations are protected from being used in court, they can be considered by the court when considering the costs at the end of each case. For example, a party may want to refer to the other party’s conduct or approach to the negotiations. After the court has dealt with the substantive issues of the case, the judge can be asked to consider the ‘without prejudice save as to costs’ communications to decide whether there should be any costs consequences for either party. 

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If you’re considering or going through a divorce and have any concerns about offers and costs or need assistance understanding potential outcomes, we can help. Click below for a free initial consultation with one of our expert divorce solicitors. 

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