The concept of privilege in legal proceedings refers to a legal right which affords confidentiality to a communication or document, meaning that they are protected from publication or disclosure.
There are different types of privilege which may attach to the documents generated by legal advice or litigation. Legal advice privilege is one of the most common examples, which attaches to communications between a client and their legal representative. This blanket of privacy allows a party the freedom to share information with their solicitor to obtain advice and assistance without fear that their communications will later be disclosed to the opposing party or court.
This piece focuses on a second type of privilege, which is without prejudice (WP) communications, particularly in the context of financial remedy proceedings and the Financial Dispute Resolution (FDR) hearing.
Without prejudice privilege
The WP rule will generally preclude discussions and communications between parties from being admitted as evidence before the court, provided that those communications have taken place in a genuine attempt to reach a settlement. As a result, WP privilege has long been considered fundamental to protecting the privacy and negotiations of those who turn to the court for the resolution of their personal disputes.
The rationale behind the WP rule has been largely fuelled by the public policy of encouraging parties to settle their finances outside of court. The rationale itself is underpinned by the idea that parties are more likely to negotiate freely and secure a settlement if they are reassured that their admissions are confidential and will not later be used against them should the settlement discussions fail.
This is particularly important when parties are required to exchange and negotiate financial offers as part of the proceedings. Specifically, the Family Procedure Rules 2010 confer special status upon FDR hearings, which are focused on negotiations, by providing that any offers or admissions made during the course of an FDR hearing cannot generally be used as evidence before a later court. This allows room for parties to negotiate and make concessions without fear that the contents of their discussions will be used against them in future court proceedings to prevent them from arguing a certain point or prejudice them in relation to a point that they were willing to concede to try to reach an agreement.
When to waive goodbye to privilege?
It is important to note that WP privilege is not absolute and, if all parties consent, it can be waived in order to disclose privileged material before the court. Failure to obtain consent before disclosing WP material to the court could result in a number of repercussions for the disclosing party, including cost penalties. Exposing a judge to privileged material also runs risk of jeopardising the fairness of a final hearing and, as a consequence, a new judge may have to be allocated.
Privileged material may also be admitted in evidence where an exception to the WP rule applies. Of these exceptions, some feed into a wider conversation concerning the transparency of family proceedings and the need for privileged documents to be disclosed where public interest demands so. In the case of Halfords Media (UK) Limited v Ponomarjovs [2015], for example, a without prejudice email was considered to be admissible in court as it contained evidence of perjury, blackmail or some other impropriety.
However, the bar to lifting the veil of privilege attached to FDR hearings is somewhat higher, as was confirmed in the recent case of LS v PS [2021]. In this case, the judge had to consider whether an alleged fraud by the parties was enough to override the privileged nature of FDR hearings. While the judge recognised that there was a public interest in the privileged documents being produced, she reiterated the importance of preserving the privileged nature of FDR hearings in order to ensure that parties can negotiate freely. As a result, the judge denied an application to disclose the privileged material, highlighting the high bar that needs to be satisfied in order to supersede the WP privilege attached to FDR hearings.
Going forward
Although the judge in LS v PS denied the disclosure application, she speculated that there may come a time “where a case can be established for justifying the introduction into proceedings of material covered by the FDR privilege” [92]. In doing so, she mirrored the family court’s continued grappling with competing policy considerations: preserve the privileged nature of the FDR hearing (and indeed, the wider privacy of family proceedings more generally), allow disclosure of ‘confidential’ communications where public interest demands so, or simply make family law proceedings more transparent in order to secure public confidence in the family court.
This conversation has led to a review by the President of the Family Division in which he discusses the existing transparency in the family court and his proposals going forward, with the Transparency Implementation Group now beginning the important work of implementing the recommendations from the report.
Time will tell if the court choose to relax their approach to FDR privilege in the wake of the recent transparency review. For now, the concept of privilege remains firmly attached to FDR hearings, unless the parties themselves agree to disclose privileged material before the court.