The without prejudice rule and the statutory settlement of employment claims. Framlington Group Ltd v Barnetson; BNP Paribas v Mezzotero.
Without prejudice; the foundational authority. Letters or conversations written or said to be 'without prejudice' cannot be taken into consideration in deciding whether there is good cause for depriving a successful litigant of costs. Per Lord Esher MR: 'nothing which is written or said without prejudice should be looked at without the consent of both parties, otherwise the whole object of the limitation would be destroyed.' The origin of the rule that the privilege is joint and cannot be waived unilaterally. Lindley LJ glossed the phrase as meaning 'without prejudice to the position of the writer of the letter if the terms he proposes are not accepted'.
ACAS conciliation; statutory privilege. Documents and communications sent to a conciliation officer in connection with the performance of the officer's functions are protected from disclosure in subsequent proceedings. The NIRC held that the basis of the privilege is the public interest in achieving agreed settlements of disputes. Decided under s.146(6) Industrial Relations Act 1971; the modern provision is s.18(7) Employment Tribunals Act 1996, under which anything communicated to a conciliation officer is inadmissible in proceedings before an employment tribunal except with the consent of the person who communicated it. Note the statutory bar applies to tribunal proceedings only; in the civil courts protection rests on the common law without prejudice rule.
Settlement; abandonment of proceedings. At 35G-H: 'There is nothing to prevent a party from abandoning proceedings: what cannot be done is to compel him to do so, because of an agreement he has made, if he has changed his mind before he does so.' Cited in Times Newspapers Ltd v Fitt and relied on by the claimant in Edward v North London NHS Foundation Trust, where HHJ Auerbach declined to treat the passage as binding (it may be obiter) but reached the same result on the words of rule 64/62.
1 WLR 1271 - Evidence; privilege; legal advice privilege.
Without prejudice; rationale and scope. Per Lord Griffiths, the rule 'is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish'. It prevents discovery of admissions made in settlement talks, and the protection extends to a third party to the same litigation and survives the settlement itself. Cite it for the rationale and the scope of the rule; the authority for the joint-waiver principle is Walker v Wilsher and, in the employment context, Cowen v Rentokil.
Unfair dismissal; settlement; a valid compromise agreement bars a subsequent claim for unfair dismissal.
1 WLR 2436 - Evidence; 'Without Prejudice'; laid down the modern rules for WP privilege.
Costs; settlement offers; the Calderbank principle (automatic costs for rejecting a reasonable offer) does not apply in employment tribunals, but rejection of a 'without prejudice save as to costs' offer is evidence of unreasonable conduct that a tribunal may consider when exercising its costs discretion.
1 WLR 667 - Evidence; 'without prejudice'; no exception for a statement that contradicts a pleaded case.
Evidence; 'Without Prejudice' privilege cannot be used to hide perjury, blackmail, or unambiguous discrimination.
Evidence; 'Without Prejudice'; the rule applies as soon as the parties are in a dispute and negotiating.
Without prejudice; implied bilateral waiver. Waiver requires the agreement of both parties, but that agreement may be implied from conduct. The employees referred to without prejudice settlement discussions in their ET1s and witness statements; the University then pleaded its responses in its ET3s and attached the grievance panel reports. The Court of Appeal held that bilateral waiver was complete at the point the ET3s were lodged. The practical lesson is that one party's unilateral reference to privileged material achieves nothing by itself — it is the other party's answering it on the record that completes the waiver. Full name: Brunel University v Webster and Vaseghi.
Without prejudice; interpretation exception. Facts communicated between the parties in without prejudice negotiations which would, but for the rule, be admissible as part of the factual matrix are admissible in evidence to construe the settlement agreement resulting from those negotiations. The same principles of contractual interpretation apply whether the negotiations were without prejudice or open, and the exception sits naturally alongside the established rectification exception.
Without prejudice; discrimination and whistleblowing claims; unambiguous impropriety. Genuine settlement negotiations are inadmissible under the without prejudice rule even where the claimant alleges the negotiations themselves evidence victimisation or detriment: there is no special exception for discrimination or whistleblowing cases, and the unambiguous impropriety exception is construed very narrowly — parties must be free to speak in negotiations without their words being combed through later for adverse inferences.
Settlement; s.111A; the inadmissibility of pre-termination negotiations extends to internal discussions about the offer.
Without prejudice; existing dispute; unambiguous impropriety. A pre-claim meeting at which the employer proposed a settled exit was protected by the without prejudice rule: a grievance alleging pregnancy/maternity discrimination meant the parties were already in dispute about the matters later litigated, even though no proceedings had begun. Proposing consensual termination falls far short of the unambiguous impropriety — of the order of perjury or blackmail — required to disapply the privilege; BNP Paribas v Mezzotero turned on its own facts.
Settlement; COT3; a COT3 agreement covers all claims in existence, even if not pleaded.
Without prejudice; waiver must be consensual. In refusing re-engagement the tribunal took account of an alternative job offer made during without prejudice negotiations. The employer argued that, having made the offer itself, it was entitled to waive the privilege unilaterally. The EAT rejected that: unlike legal professional privilege, without prejudice privilege is joint and any waiver must be bilateral. If the party who made the offer cannot waive alone, a fortiori the party who received it cannot. Remitted to a fresh tribunal to decide whether there had in fact been bilateral waiver.