Without prejudice discussions

Confidential discussions aimed at resolving a dispute on agreed terms must not be revealed to tribunal, even if no agreement is reached. This is known as the “without prejudice” rule. Its rationale is that parties who know that their settlement discussions will stay secret are more likely to talk freely to try to resolve their differences outside court. The without prejudice rule protects discussions from disclosure in all court proceedings where:

• there is a pre-existing dispute between the parties, such as an ongoing disciplinary or unresolved grievance;

• there is a genuine attempt to settle the dispute; and

• one party has not behaved with obvious impropriety, such as engaging in discrimination during the negotiations (BNP Paribas v Mezzotero [2004] EAT/0218/04).