Bilateral waiver of without prejudice discussions allows admissible evidence

Normally without prejudice discussions including admissions and concessions cannot be used in evidence. This is because they are tools that are used to facilitate disputes being resolved without the need of going to court.

 

However exceptions can arise when one or both parties waive this “secrecy pact” to allow certain evidence being looked at and admissible in evidence by a court of law.

 

In one such recent case-Brunel University & another v Vaseghi & Webster-the Court of Appeal (CA) held that the EAT (the Employment Appeal Tribunal) had been right in deciding on the facts there had been a bilateral waiver of privilege (secrecy) in respect of some “without prejudice” negotiations and that evidence of those negotiations could be admitted in proceedings.

 

Waiver of privilege occurred here when the university in its haste to defend its position against a victimisation claim brought by Professor Vaseghi and Mrs Webster appended to the ET3 defence form the university’s grievance panel reports dealing with those discussions.

 

Other aspects of such waivers were sought to be examined and clarified but the CA refused unhelpfully to rule on certain issues thereby leaving parties and practitioners in the dark in the future with respect to whether they could be applied in discrimination and victimisation cases.

 

Care must therefore be taken when conducting your own negotiations lest certain admissions be construed to be admissible in a court of law so undermining your negotiating stance. If in doubt ask us for guidance and advice so that a casual slip of words(or attachment of documentation)cannot be turned into something more significant that could cost you dear.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.