Toni Fitzgerald-Gunn, Solicitor, provides guidance on “Without Prejudice” communications

The phrase ‘without prejudice’ is normally used where parties in dispute genuinely wish to reconcile their differences, and can do so without fear that such communications will be placed before a Tribunal or Court should negotiations fail and the matter is thereafter the subject of litigation.

The principle of ‘without prejudice’ communications or conversations, which may also be known as ‘protected conversations’, has been the subject of much litigation in recent times. The Employment Appeal Tribunal case of Dr Vladimir Portnykh v Nomura International PLC [2013] UKEAT/048/13provided a summary of the law with regards ‘without prejudice’ communication, which is confirmed briefly below:

The purpose of such communication is to encourage parties to resolve their issues without the need of involving the Courts;
Admissibility of the communications can depend on the express or implied agreement of the parties in ensuing/participating in same;
The communication is unlikely to attract the ‘without prejudice’ privilege if to do so would disguise an act of blackmail or other impropriety; and
The ‘without prejudice’ principle cannot be abused as an avoidance mechanism from legal consequences if there is “no genuine dispute” between

In a recent Pre Hearing Review in the NI Tribunal in the case of Paul McKinstry v Moy Park & Ors (Case Ref: 1725/13) the Tribunal confirmed its reasoning for determining that a meeting between Mr McKinstry and his superiors was protected by ‘without prejudice’ privilege:

“4.2…at the outset of the meeting, the respondents made it clear that the discussions were to be ‘without prejudice’… (and) the meaning of ‘without prejudice’ communications was properly explained to (the claimant)…Further…the nature of the discussion which was to take place was outlined by the respondents…

From the outset of the discussion, it was apparent that the respondents, for their part, believed that there was dispute between the parties; which, if it could not be resolved at these discussions by means of a compromise agreement to terminate, by agreement, the claimant’s contract of employment the disciplinary procedure would have been invoked and this could result in the claimant being dismissed by the respondents…the claimant did not accept the respondents’ allegations about his conduct and subsequently the compromise offer made by the respondents. It is therefore apparent from the details of the said discussions that the parties were in dispute and both would have been fully aware of the potential for litigation if the matter could not be resolved…

Clearly…the respondents were hoping to avoid the need to go to tribunal. There is nothing to suggest…the discussions were not a genuine attempt at settlement of this employment dispute, before the disciplinary procedure was invoked; with the possibility of dismissal and subsequent litigation, in a tribunal, if dismissal was the sanction imposed.

… 4.3…there was nothing to show the evidence would act as cloak for perjury, blackmail or other unambiguous impropriety.”

The case was appealed and has since been remitted by the Court of Appeal to the Tribunal for a fresh determination.

Parties to litigation (and sometimes their legal representatives) can be quite nonchalant with their use of the phrase ‘without prejudice’; but, as demonstrated in the case of McKinstry v Moy Park & Ors, it is an important and useful tool, which, if used correctly, enables the free exchange of views in genuine settlement discussions without the fear of adverse repercussions in a Court or Tribunal setting. In addition, if successful, it often avoids lengthy, protracted litigation and the costs associated with same.

However, a word of warning – Before engaging in such communication, professional legal advice should be sought, as determination as to whether communications are protected by ‘without prejudice’ privilege, very much depends on the particular facts and circumstances of each case.

Toni Fitzgerald-Gunn is a Solicitor in the Employment Department at Worthingtons and advises in all aspects of Employment Law