08 June 2010 #Employment
The without prejudice rule will generally prevent documents from being admitted and used as evidence against the interest of a party in any court hearing without the permission of both parties.
Exceptions to the rule are very limited with the main exception being where:-
"....the exclusion of what was communicated in without prejudice negotiations would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety".
In Woodward v Santander UK Plc the EAT held that where there has been ‘unambiguous impropriety`, the exception only applies in the very clearest of cases. The impropriety must always be unambiguous even where the impropriety is alleged to be discrimination.
The employee in this case was dismissed in 1994 where proceedings brought for unfair dismissal and sex discrimination were settled in 1996. Over the years, this employee had unsuccessfully held on to employment and blamed her previous employer, Santander for providing poor references for her. She subsequently made a further claim against Santander alleging victimisation, direct sex discrimination and detrimental treatment for whistleblowing, seeking to introduce evidence of without prejudice negotiations that had taken place in 1996.
The employee`s claims were dismissed. The exception to the without prejudice rule did not apply given that the policy underlying the rule was not to discourage parties from settling by fear that something said in the course of negotiations maybe used to their prejudice.