Michael Salter & Chris Bryden re-examine the without prejudice rule
The vexed issue of the without prejudice rule and its applicability to employment situations has again arisen at appellate level. The case of Portnykh v Nomura International plc [2014] IRLR 251, [2014] All ER (D) 52 (Jan) (judgment handed down on 5 November 2013, but embargoed until the conclusion of the hearing proper to avoid prejudice) considers both the issue of when there is a dispute, so as to engage the without prejudice rule, and also the question of the applicability of the “unambiguous impropriety” exception. The judgment of His Honour Judge Hand QC contains a thorough analysis of the applicable law and is well worth reading in full.
Communications
Without prejudice communications between the parties are prima facie not admissible before the tribunal unless both parties agree, or where admission is required to prove the existence of an agreement, or where non-disclosure would amount to the concealment of unambiguous impropriety or otherwise allow a dishonest case to be advanced. It is thus not possible to seek to rely upon
