Without prejudice discussions

Confidential discussions aimed at resolving a dispute on agreed terms must not be revealed to a tribunal, even if no agreement is reached. This is known as the “without prejudice” rule. Its rationale is that knowing that discussions will be kept confidential encourages parties to talk freely with a view to resolving their differences outside court. The without prejudice rule protects discussions from disclosure in all court proceedings so long as:

• there is a pre-existing dispute between the parties, for example, an ongoing disciplinary or capability procedure or an unresolved grievance;

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

• a party has not behaved with obvious impropriety during negotiations, for example, by engaging in discrimination or victimisation (BNP Paribas v Mezzotero [2004] EAT/0218/04/RN).