It is common for negotiations/discussions to be conducted ‘without prejudice’ with a view to keeping the detail away from Tribunal eyes.  But to what extent can we rely on simply stating at the beginning of a meeting/in discussions/on correspondence that it is ‘without prejudice’?

This point was addressed again by the EAT in the recent case of Mrs D Woodward v Santander UK Plc.  The EAT have held that the Tribunal was correct to exclude evidence from which the Claimant wished to adduce concerning an alleged refusal, in the course of without prejudice negotiations, to provide a reference for her and considered the main case on this issue of BNP Paribas v Mezzotero.

The basic rule is that Tribunals are prohibited from referring to without prejudice communications made as part of negotiations with a view to reaching settlement.  However, Mezzotero established an exception to the rule in the case of ‘unambiguous impropriety’ i.e. for the ‘without prejudice’ rule to apply there must be (a) a dispute between the parties and (b) the written or oral communications to which the rule is said to attach must be made for the purpose of a genuine attempt to compromise it.

Subsequent modern cases on this point (Unilever plc v Proctor & Gamble/ Ofolue v Bossert) have leant towards the without prejudice rule having a wide effect and highlighted that the principal exception is where without prejudice negotiations would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’.  The requirement for impropriety to be unambiguous must be strictly applied lest the exception overtake the rule and render it of no value.

In this case the EAT found in favour of application of the without prejudice rule and stressed that parties should be able to settle their differences (whether by negotiation or mediation) in conditions where they can speak freely.