In negotiating separation agreement, the parties' lawyers conducted meetings on behalf of their clients and with their clients in attendance. Additional correspondence on a "without prejudice" basis discussing modification to the agreement was exchanged by both parties. On August 29, 1996 Mr. Chapman's lawyer sent a letter confirming Mr. Chapman had agreed to a $30,000 all inclusive payment from his pension plan. On the same date, Mrs. Chapman's lawyer responded accepting the agreement. On September 4th Mr. Chapman's lawyer sent a letter saying she had heard from Mr. Chapman by telephone on the 3rd saying the settlement was "off". Mrs. Chapman maintains that a binding agreement was reached.
- Was a binding agreement reached?
Judgement for the petitioner.
While comments on the exchanges between the lawyers indicating the correspondence was "without prejudice" (which renders them inadmissible at trial), once an agreement was reached, that privilege is removed. In analysing whether an agreement was made, Goodfellow looks at whether the other party could now deny that a settlement was reached. Finding no ambiguity or chance of mistake, he concludes that the settlement is final and finds for the petitioner.
Once an agreement is reached, "without prejudice" materials are admissible.