Offers to settle and settlement discussions in a civil case cannot generally be used as evidence at trial and are considered without prejudice, even when dealing with ICBC. This rule was created to provide protection to litigants that try to resolve disputes and is referred to as settlement privilege.
In this email settlement offer case (Mayer v. Mayer,2013 BCSC 195) an email was sent in an attempt to resolve a civil dispute that invited settlement negotiations but contained no specific offer. The party receiving the offer argued that the email was really a threat not an offer and should not be protected by settlement privilege.
Judge Grauer was quick to point out that, “A writing intended to initiate bona fide settlement discussions, although containing no offer, still qualifies as having been written without prejudice…The solicitor who sent the email was not threatening to do something if the other side did not settle. He merely pointed out what was in fact about to happen, and noted that it would benefit all concerned if settlement occurred before, rather than after that event.”
To understand more about without prejudice settlement discussions read our article about Offers to settle with ICBC. Issue: When does an invitation to settle become a threat?
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