BE v DE

This is an application by a husband, DE (whom for convenience I will call "the husband") dated 15^th May 2014, for an order requiring the wife, BE (whom for convenience I will call "the wife") to redact a statement of hers, dated 28^th April 2014. In it she refers to an occasion which the husband maintains was a without prejudice meeting between them on 22^nd April 2013, and she exhibits a copy of a proposed form of written agreement ('the document') which the husband produced to her at the meeting. He says that 'the document' is likewise protected by the without prejudice principle from being referred to in an open context. The wife's responses are multiple but are essentially that the without prejudice protection does not attach here and/or that if it would have attached, the protection was waived by the husband, thereby entitling her to refer to the contents of the document concerned.

This issue arises in the context of a factual dispute between the parties about the jurisdiction of the English court in divorce proceedings. On the wife's case, she had been habitually resident in this jurisdiction for a year before issuing a petition here on 2^nd April 2013. The husband says that this is untrue. He maintains that the wife is forum shopping. If the wife is correct, the English court has jurisdiction. If not, and if the husband is right, the English court does not have jurisdiction. Needless to say, what lies behind this expensive jurisdictional struggle is money. If the English court has jurisdiction, both parties expect the wife to do much better in consequential financial remedy proceedings than if the proceedings take place in ‘country X’, where the husband himself has also issued proceedings for divorce.

The main reason that the wife seeks to put in evidence 'the document', and the husband resists it, is that it contains a proposed provision that she should be entitled to continue living at her address in London "... which she currently lives in". The wife considers that this supports her case about having made her main residence in England and so weakens the husband's open case to the contrary.

The husband has been represented on this application by Timothy Bishop QC. The wife has been represented by Mr. Hodge Malek QC and Mr. Alexander Thorpe. Although their cases are poles apart, each counsel has put his client's case before me calmly, cogently and persuasively. I am grateful for this in circumstances where, from the relatively little I have seen of the case, it seems to be being run in a pretty combative way. Both parties have made long and tendentious statements which, again from the little I have seen, have not been restricted to the provision of evidence but have slipped into arguing the case. Before turning to the brief background, I emphasise that nothing I say arising out of this interlocutory hearing is intended to constitute or be read as any sort of definitive finding of fact. That will come at the final hearing of the jurisdiction issue, which I understand to be next month, July 2014.

The wife is 40 and is from ‘country Y’. The husband is 54 and is from country X. They married in 2002. There are no children of the family. The husband is a highly-paid higher executive officer of a well known financial institution and is responsible for a number of countries. The parties lived a rich international lifestyle: the husband travelling with his work, and the wife travelling with her passionate interest in contemporary art. Hence the parties were not routinely together at one obvious fixed base, as most couples conventionally are.

By the beginning of 2013 it was clear to both parties that the marriage was in difficulties. Each has said that he/she was hopeful that it could and would be repaired. They differed essentially over where the wife should live: in England, according to the wife, or in country X according to the husband. In addition the wife says that the husband was taken up overmuch with his work; whereas he did not feel it fair that he worked hard to earn all the money whilst the wife enjoyed an easy and glamorous lifestyle spending it.

On 2^nd April 2013 the wife issued a 'protective' petition in England. She did not tell the husband she had done so, nor did she instruct service of him, hoping, she says, that they could resolve their difficulties. By 'protective' I mean in the context of the rules about which court is ‘first seised’. On 5^th April 2013 the husband issued a protective petition in country X. He too did not tell the wife, nor was it served on her. In that petition he asserts the wife's habitual residence to be in England (sic), which the wife says was doing nothing more than recognising the truth. The husband and his country X lawyer, Mr. C, however, say that this was a fiction necessitated by the need to avoid the risk of the country X courts concluding (if the petition had asserted that the wife lived in country X) that the parties had not yet been apart for one year, that being a condition precedent in country X to one being able to obtain a divorce. In para.63 of the husband's affidavit about jurisdiction, he says:

This strategy is confirmed by Mr. C in a statement of the same date where he says:

It is now necessary to see how the evidence about the relevant meeting on 22^nd April 2013 and of 'the document' itself came to be introduced into evidence by the wife, which the husband says is a breach of the without prejudice principle. As is obvious from the context, otherwise we would not be here, the meeting and 'the document' came to nothing. No agreement was reached on or after 22^nd April 2013 and so it is that the issue as to jurisdiction will fall to be determined in this court in July 2014.

The first mention of the meeting on 22^nd April 2013 is at para.14 of the wife's affidavit of 13^th August 2013 regarding maintenance pending suit. She there said:

The wife repeated this when she was questioned by Mr. C at a hearing in country X (the country X proceedings have since been stayed) on 26^th June 2013. The transcript of part of the wife’s evidence at that hearing says:

In the husband's statement dated 11^th September 2013 in response to the wife's statement of 13^th August 2013, he made clear that he was not going to deal with all the wife's points because he had made a lump sum offer to settle the maintenance pending suit application. He did not then make any complaints the wife's affidavit of 13^th August 2013 had offended the without prejudice rule - a fact relied on by Mr. Malek as a waiver. Mr. Bishop, on the other hand, says that it would not be right to hold this to be a waiver, not only because the husband expressly stated he was not taking every point, but also because the wife had not at that stage relied on the contents of 'the document', only the fact of its existence.

On 17^th March 2014 the husband responded to the wife's statement dated 13^th January 2014 regarding jurisdiction, and in particular to her para.53. That paragraph of the wife's statement does not introduce the topic of the relevant meeting on 22^nd April 2013, nor make any reference to 'the document'. The husband says at para.113 of his affidavit:

It was in reply to the husband's statement of 17^th March 2014 that, on 28^th April 2014, the wife filed her statement which gives rise to this application. At paras.50 and 51 she says:

The draft agreement was exhibited to the wife's affidavit. It said, taking it very shortly, that the parties were adopting country X law as to their matrimonial property regime and that the husband would pay the wife maintenance at €25,000 per month, plus her health insurance. It gave the wife the right to use a property in the South of France, but such right to be surrendered without compensation if the husband wished to sell that property. It retrospectively excluded community of acquisition of assets, and said that each renounced any financial claims. As to the wife's home in London, the draft deed said:

There has been some discussion about the meaning of the draft agreement and in particular as to whether the income provision was only to last during "separation" and was to end when the divorce brought the separation to an end. Mr. Malek says that that would be the correct interpretation, but Mr. Bishop says ‘no’, that the maintenance would have continued after a divorce. As I said at the time, it is no part of my role at this hearing to come to a view about the proper meaning or merits of what the husband was proposing, and I resist doing so. It does not affect the without prejudice argument before me.

That last affidavit by the wife and her exhibiting 'the document' led to the husband's notice of application of 15^th April 2014 for redaction. He supported it with an affidavit of 30^th May 2014, in which he says:

The wife's affidavit in reply, dated 30^th May 2014, is relatively long and is repetitive. I will extract some of the key passages:

By agreement between the parties, the husband has not replied to that statement of the wife's dated 30^th May 2014 and he is not here today (although the wife is in attendance). So that represents a summary of the evidential base for the husband's application.

I have been provided with a lever arch file of 17 authorities. I have not however gleaned that there is any, or any significant, disagreement between counsel about the principles to be applied. I can therefore refer essentially to Phipson on Evidence 18^th edition. The starting-point is that written or oral communications made in a genuine attempt to settle a dispute between the parties will not generally be admitted into evidence: Phipson paras.24-09 and 24-13. The policy is that parties should be encouraged to settle their disputes without resort to litigation and such that they can speak freely: Cutts v. Head [1984] Ch 290 at 306 per Oliver LJ. A first unsolicited letter offering settlement or negotiations marked 'without prejudice' will as a matter of policy therefore be protected; and so it is that the without prejudice principle is said to rest partly (a) on that public policy just mentioned and partly (b) on an express or implied agreement between the parties that they will not later rely in an open context on the contents of settlement negotiations. There has to be a bona fide attempt to resolve a dispute, in the absence of which the without prejudice principle is not engaged: Phipson 24-11. As Mr. Bishop QC says, the words "without prejudice" are not essential, although clearly persuasive. When they are not used, the occasion or document may still be found to be without prejudice "...if it is clear from the surrounding circumstances that the parties were seeking to compromise the action": Rush & Tompkins v. GLC [1989] 1 AC 1280 at 1299 per Lord Griffiths. At para.24-13(d) Phipson puts it in this way:

There is a modest and, in my judgment, obiter suggestion in South Shropshire DC v. Amos [1986] 1 WLR 1271 at 1277 by Parker LJ that the applicable test might be subjective, i.e. that the subjective intent of the person making the proposal - here the husband – is critical as to whether the circumstances of an alleged negotiation showed it to be without prejudice. I read the relevant sentence in South Shropshire as being said in the context of the particular facts of that case. Further, in Pearson Education Ltd. v. Prentice Hall India Private Ltd. [2005] EWHC 636, Crane J declined to follow any such suggestion as may be read in South Shropshire, noting that it would be contrary to the tenets of contractual construction and would lead to the undesirable need for oral evidence and cross-examination on interlocutory applications (such as this one before me). He cited from a decision of Laddie J in Schering Corporation v. CIPLA Ltd. and Neolab Ltd. [2004] EWHC 2587 where Laddie J said at para.17 of his Judgment:

Accordingly, in para.22 of his judgment in Pearson, Crane J said that in his view the test is an objective one. I respectfully agree. So too do the editors of Phipson, when they say that the question "... must surely be determined objectively": para.24-14. That is therefore the test which I propose to apply in determining this case. This hearing has in any event not been set up for any examination of the parties' respective subjective views of what was happening or intended to happen on 22^nd April 2013 (ie according to the husband, a start of negotiations by way of his giving the wife 'the document', as his offer; and, according to the wife, a cynical ambush to bully and coerce her into conceding the country X property regime and giving up many of her rights). I therefore have to and shall determine the issue on the paper evidence of the parties, which will almost always be the appropriate approach in any event, if the proper test is an objective one.

First, was there here a dispute or a sufficiency of a dispute between the parties? Whilst this clearly does not require the existence of legal proceedings, it must surely mean a reasonably cohate and definable issue or series of issues, not just a number of reciprocal differences or grievances which might or might not prove soluble with reflection and discussion. The husband says he was endeavouring to settle the wife's financial claims, but she had not yet made any (except purely formally in her petition, of which the husband was unaware). He speaks of a separation and of a potential divorce, although he was still hoping to avoid it. According to the wife, she for her part was wanting to save the marriage and to work out a modus vivendi. For her, this was just an unhappy couple discussing their marriage difficulties over dinner. Each had, it is true, issued a petition but as I have said neither knew so. Therefore they could not have been addressing that and, in any event, their motivations in issuing their petitions were merely ‘protective’. In all the circumstances, I am not persuaded that there was as yet in existence a dispute or sufficiently definable dispute between this couple which the law envisages and requires for the without prejudice protection to attach.

Second, if I am wrong about that and there was a dispute, or a sufficient dispute, was it “clear from surrounding circumstances” (particularly since the words "without prejudice" were not used) that the parties were seeking to compromise such dispute? It must be necessary from what I have said above that both parties realised or must or should have realised this, not just the person now praying in aid the without prejudice protection. The husband avers that the wife was ‘fully aware’ that they were meeting to discuss settlement; but, without deciding anything definitively, I have to read that assertion against the background of his seemingly self-serving attitude towards establishing jurisdiction in the country X court, as referred to at paragraphs 7 and 8 above. The wife says she had no idea that this dinner was intended as a negotiating opportunity. They were, as I have said, in her eyes, a married couple with marital difficulties out to dinner. It was not a meeting in an office, nor with an agenda, nor (depending on the resolution of the factual issues at the hearing in July 2014) with advance notice to the wife of the likelihood of an offer. The husband, according to the wife, just produced 'the document' (which I accept was in the nature of an offer) and then subjected her to pressure to sign it. I do not consider in the overall context that it is shown to have been clear from the surrounding circumstances that the parties were seeking to compromise any dispute which (strictly on this hypothesis) existed. Nor for that matter on the current state of the evidence (although this may change at the jurisdiction hearing) does it look as though this occasion represented a bona fide attempt by the husband to settle, as distinct from an attempt to impose. To be truly bona fide, should he not have disclosed to the wife the fact of his country X petition? (The wife's not having disclosed to him the fact of her English petition is nothing to the point, since it is not her case that this was an occasion to explore settlement.) The husband has been on notice from an early stage (as seen in the summary of evidence above) of the wife's case that he was not negotiating but seeking to impose his will on her, but has not answered it in his written evidence.

It is not necessary in my view to determine any of the other points raised by the wife. I am not, in the result, persuaded that her affidavit in question should be redacted nor the exhibit to it removed. The husband’s application is therefore dismissed.