Q&As

In employment proceedings, where the parties have waived without prejudice privilege, is the without prejudice communication itself admissible, or just the fact that there was a without prejudice communication?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 09/01/2020

The following Employment Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • In employment proceedings, where the parties have waived without prejudice privilege, is the without prejudice communication itself admissible, or just the fact that there was a without prejudice communication?

In employment proceedings, where the parties have waived without prejudice privilege, is the without prejudice communication itself admissible, or just the fact that there was a without prejudice communication?

Where parties communicate in a genuine effort to settle a dispute, that correspondence will be subject to without prejudice privilege, meaning that it will not be admissible into subsequent court proceedings (except, insofar as costs are concerned, that privilege is expressed to be save as to costs). Correspondence does not need to be marked as being without prejudice to attract the privilege (Chocoladefabriken Lindt v Nestle [1978] RPC 287 (not reported by LexisNexis®)), though whether the correspondence is treated as being open will depend upon its context. Likewise, simply

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