Narrow boundaries for exceptions to ‘without prejudice’ rule

The recent case of Woodward v Santander UK plc clarifies the ‘without prejudice’ rule and confirms the narrow boundaries of exceptions.  The established exceptions are that it must not be “a cloak for perjury, blackmail or other ‘unambiguous impropriety’”.  This case confirms that the courts are reluctant to extend the exceptions to the ‘without prejudice’ rule and that clear evidence of these abuses must be found before without prejudice material can be relied on in court.

Mrs Woodward sought to adduce evidence from ‘without prejudice’ negotiations that had occurred between her and her former employer, Santander.  Mrs Woodward had alleged victimisation and direct sex discrimination against Santander.  She wished to use evidence of her request for a reference and Santander’s refusal to give one from settlement discussions to show that Santander had “reprisal in mind” from the outset and that the subsequent conduct was discriminatory.  Santander applied to prevent this material from being used in court, despite the fact it had already been made public as part of whistleblowing proceedings brought by Mrs Woodward.

The EAT upheld the Employment Tribunal’s decision that the ‘without prejudice’ evidence could not be used.  There was no evidence that the case fell within the ‘unambiguous impropriety’ exception, which must be construed narrowly.  If the rule were not to be applied rigorously it would have the potential to discourage parties from speaking freely when settling disputes.  The EAT considered it was irrelevant that the matters were already in the public domain, since the purpose of the ‘without prejudice’ policy is not to protect confidentiality and the rule does not cease to apply when the information becomes public.