This article, the first of two, asks the question: when, in family
proceedings, does the without prejudice rule (or ‘privilege’) apply? When does
the immunity from production of documents and information in later proceedings
operate? And to what extent is this date important from a mediator’s point of
view? The production/disclosure question has arisen in two recent reported
cases in family finance proceedings. From what point in parties’ negotiations
are they prevented from disclosing information or documents to the court? What
are the rules at common law (arising mostly from commercial and employment law
proceedings); and is the common law approach in family cases different from in
other civil litigation? This article answers as many of these questions as it
can; and it concludes by posing a mediation/case management question for review
in a future article. The full version of this article appears in the March 2015 issue of Family Law.
Online subscribers can access the full version of the article here.