EAT Practice and Procedure : Admissibility of Evidence – The Employment Judge had misdirected herself on the ‘without prejudice’ rule. She had looked only in the correspondence itself for an actual ‘dispute’ and by failing to consider the factual matrix in which the correspondence arose she had misdirected herself by excluding the possibility of ‘a potential dispute’. Alternatively, even confining the issue to the actual correspondence, she had misdirected herself as to ‘dispute’; that does not need to be extant litigation nor a hostile atmosphere only the potential for litigation. In a further alternative the conclusion that there was no ‘dispute’ was one that no reasonable tribunal could have arrived at on the evidence before it (Unilever plc v The Procter and Gamble Co [2000] 1 WLR 2436; PNB Paribas v Mezzotero [2004] IRLR 508; Framlington Group Ltd v Barnetson [2007] IRLR 598; Ofulue v Brossert [2009] 1 AC 990 considered and applied). It was unnecessary to consider the extent to which the ‘without prejudice’ rule might rest on ‘negotiation’ alone in the absence of any ‘dispute’.
She had also misdirected herself as to the concept of ‘unambiguous impropriety’. Although helpful guidance is to be found in decisions of this Tribunal in PNB Paribas v Mezzotero [2004] IRLR 508 and Woodward v Santander UK plc [2010] IRLR 834 the principle underlying, and the nature of, that exception is identified in the judgment of Rix LJ in Savings and Investment Bank Limited (in liquidation) v Finken [2004] 1 WLR 667 and it must always be considered whenever the exception is raised. In this case the Employment Judge identified only the disadvantage that the Respondent might suffer and confused that with the abuse of the privileged position necessary before the ‘unambiguous impropriety’ exception can apply.
Judge Hand QC
[2013] UKEAT 0448 – 13 – 0511
Bailii
England and Wales
Cited by:
Cited – Horizon Security Services Ltd v Ndeze and Another EAT 18-Jun-2014
EAT Practice and Procedure : Disclosure – Costs – On an application under rule 34A(2A) EAT Rules 1993, as amended, the EAT has a broad discretion to make a costs order in favour of a successful Appellant in the . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 28 November 2021; Ref: scu.520033
