Unambiguous impropriety, without prejudice and dispute identification: EAT decision upholds sanctity of negotiation confidentiality
In an appeal before the Employment Appeal Tribunal (EAT), HHJ Hand found that where the decision to dismiss the claimant for misconduct had already been taken, and negotiations were entered into regarding treating that dismissal as a redundancy, those negotiations were ‘connected to’ a dispute and therefore within the ambit of ‘without prejudice’ protection where marked appropriately. On the matter of unambiguous impropriety and its ability to invalidate a without prejudice mark, the EAT found that more than a disadvantage is needed to meet the threshold set by the Court of Appeal in Savings & Investment Bank Ltd (in liquidation) v Finken — the abuse should be approximate to ‘a blackmailing threat of perjury’ before the document can be admitted in proceedings (Portnykh v Nomura International plc).
It has long been the accepted position that for a negotiation to be kept between the parties on the basis of ‘without prejudice’ markings, there first had to be a dispute. Furthermore, if ‘without prejudice’ protection is used to conceal ‘unambiguous impropriety’, the document will lose the confidentiality usually afforded within litigation proceedings. The EAT had to consider both issues here in relation to a settlement negotiation: (i) when could the parties be considered ‘in dispute’; and (ii) how improper does behaviour need to be before it can be described as ‘unambiguous impropriety’? …
Click on the link below to read the rest of the Addleshaw Goddard briefing.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from The Lawyer
Analysis from The Lawyer
Freshfields Bruckhaus Deringer has made waves in Manchester by offering the city’s paralegals turbocharged salaries to switch allegiances.
Which firms are cutting it in this era of slimline rosters, and who are the GC new brooms making clean sweeps? The Lawyer can reveal all