When might ‘without prejudice’ communications be disclosed?
In any form of legal dispute it is common practice for parties to negotiate on a “without prejudice” basis in an attempt to settle the dispute without the need for court proceedings, either before proceedings are started, or even during proceedings to bring them to a halt.
Such “without prejudice” communications may not be revealed to the court in the event that proceedings do progress, the purpose being to encourage the parties to a dispute to settle in the knowledge that anything said during negotiations may not be disclosed.
The main exception to the rule is where it is used as a “….cloak for perjury, blackmail or other unambiguous impropriety.” So, for instance, whilst it is normally advisable to attempt to settle disputes without the need for court proceedings, parties should be aware that they cannot say whatever they want simply because the communication is marked or stated to be ‘without prejudice’. It is always advisable to consider the consequences of a without prejudice communication coming to the attention of a court. For example, instead of an employer saying in communications labelled without prejudice, “accept this offer or I’ll sack you” something along the lines of “if you choose not to accept this offer we will pursue disciplinary proceedings which could result in you being dismissed” would be more advisable.
A recent decision by the Employment Appeal Tribunal has emphasised, however, that there must be very clear evidence of abuse for the protection of the without prejudice rule to be lifted. So, for example, if an employer were to make a comment such as “we do not want you working here because you are a woman” it would be abundantly clear that there has been ‘unambiguous impropriety’, and the exception to the rule would apply and the statement would be admissible in court.
If you are currently contemplating or involved in some form of dispute resolution and need advice or guidance, please contact our litigation team at firstname.lastname@example.org.