Without Prejudice Communications (WPC)

 In litigation, all communications passing between the parties, whether orally or in

writing, which are made in an attempt to settle a dispute, are protected from
disclosure in both the present and in any subsequent proceedings between the
same parties and connected with the same subject-matter. [Cutts v. Head]
 Public policy operates to protect those communications from being disclosed to
third parties. This enables the parties to conduct negotiations freely, without fear
that any statements made in settlement negotiations might be used against them
later.
 The strength of this principle has been reasserted by the courts. [Ofulue]
 The without prejudice rule will prevail even if litigation has not yet begun. The
question is whether both parties contemplated or might reasonably have
contemplated litigation if they could not agree.
 There will be no protection for communications made before it is clear that there is a
dispute between parties.
 Further, this rule has no application to communications sent on an open basis.
 Communications are protected from disclosure whether or not the word ‘without
prejudice’ is used, provided the communications are genuinely aimed at
settlement of a dispute.
 The words ‘without prejudice’ simply reserve the right to raise a point.
 The court will not dissect negotiations in order to isolate statements that will be
admissible from those that are not as this would undermine the purpose of without
prejudice communications.
 This rule will not apply to admission.
 For example:
o Communications between the parties and a conciliation officer in
employment cases are protected from disclosure. [s.18(7) of the Employment
Tribunals Act 1996]
o Private law family cases concerning children, in court conciliation led by the
judge in collaboration with the Cafcass officer and any mediator will be
protected from disclosure in any subsequent hearing before another judge.
(Myerson v. Myerson). [Exceptions: Re T (a child)]
 Communications that are part of a settlement discussion with a regulatory body may
be protected.
 A meeting between lawyers opposing sides to discuss ‘battle tactics’ will not be
protected.
 Privilege only belongs to the parties and if the parties wish to waive it, the ‘any
neutral third party’ cannot rely on it to protect communications aimed at settlement.
 However, 3rd parties may be able to rely on the separate concept of confidentiality
above to prevent disclosure.

Exceptions to the WPC Rule

 Can be disclosed to the court in the interests of justice
 To determine whether a settlement was reached, or to prove the terms of
settlement.
  To assist in proper interpretation or construction of the terms of an agreement or to
ascertain the objective meaning of the parties’ intentions
 If rectification of the agreement is required
 To determine whether any settlement agreement reached should be set aside on the
grounds of misrepresentation, fraud, or undue influence.
 A non-concluded settlement agreement giving rise to an estoppel.
 Where the rule is being abused (threats, dishonest, oppressive conduct)
 Where the rule is being used as a cloak for perjury, blackmail and other
‘unambiguous impropriety’ [nothing less than ‘unambiguous impropriety’ will
suffice]
 where there is a risk of serious harm to a child
 in some interim applications to explain delay in commencing or prosecuting
litigation, or to obtain relief from sanctions
 where both parties to the dispute consent to the privilege being waived so that
documents can be put before the court, although no inferences should be drawn
from a refusal to waive privilege.
 If the parties have made it clear that the communications can be looked at on the
question of costs, where the court can look at the communications after judgment
has been given on liability and before it determines the questions of costs. [for
example, by marking the documents ‘without prejudice save as to costs’]
 Any new exception has to be consistent with the overall policy that parties should
not be discouraged from settling their disputes.

The Duty of Confidentiality

 Privacy is an advantage of ADR process
 Litigation normally takes place in an open court, but ADR processes are private.
 However, there is absolute right in privacy for ADR processes
 Privacy in ADR processes is protected by the following principles:
o Professional duties imposed on lawyers to maintain confidentiality;
o Any contractual agreement between the parties;
o By the principle of legal professional privilege (privilege includes
communications between a lawyer and client made for the purposes of giving
or receiving legal advice);
o The without prejudice rule (a privilege from disclosure of oral or written
communications made in the attempt of settling a dispute, which applies in
both adjudicative and non-adjudicative processes)
 Problems may arise if:
o The ADR process breaks down and a party would like to use something
revealed in later litigation;
o There is any dispute about the terms agreed in the settlement,
o There is an attempt to call anyone involved in the ADR process as a witness in
later proceedings
o Someone who is not a party or their legal representative attends a mediation
but has not signed the mediation agreement.
The Extent of the Duty
 A barrister has a duty to keep the affairs of each client confidential (BSB CD6)
 This is supported by guidance which provides that the duty of confidentiality is
central to the administration of justice
 A barrister must protect the confidentiality of a client’s affairs, except where
disclosure is required by law, or the client gives informed consent

Confidentiality in Mediation
 The confidentiality of mediation is based on contractual agreement and on the
‘without prejudice’ principle
 Communications that take place between the parties themselves, and between each
party and the mediator should not be revealed to the court or third party, whether
or not settlement is reached in that process.
 A separate duty of confidentiality exists in mediation where communication takes
place between a party and the mediator in a private meeting
 These communications are confidential unless the disclosing party agrees
otherwise
 The mediator owes a separate and enforceable duty of confidentiality to each party
in the private meetings and this is usually reinforced by the terms of the mediation
of agreement and the Code of Conduct governing the mediator’s conduct.
 However, there are exceptions. Communications taking place in mediation can be
disclosed in the following circumstances:
o The court may order disclosure where it is in the interests of justice to do
so, and may override confidentiality in the following circumstances. The
parties may agree, by the terms of the Mediation Agreement, that the
mediator is not bound by the obligation of confidentiality in some or all of
these circumstances:
 Where one party seeks to set aside a settlement agreement reached
in mediation on the grounds of economic duress
 Where a claim is being brought against a mediator for misconduct
and negligence in the mediation
 Where there is a risk of harm to any person, including children
 To determine whether a settlement was reached at mediation
 To prevent the committing of criminal act
 Where there is a statutory duty to disclose information, eg. Under
the Proceeds of Crime Act 2002
o In mediations in cross-border disputes, confidentiality can be overridden in
the circumstances set out in CPR r. 78.26
o An express confidentiality clause in the mediation agreement binds all parties
to the agreement, including the mediator, so the parties cannot waive
confidentiality if the mediator wishes to maintain it. However, confidentiality
may be waived in the following circumstances:
 The parties agree it is important that a public rather than a private
meeting takes place during the mediation to air issues which affect a
number of interested parties (planning and environmental dispute)
  The parties want a provision of their settlement agreement to be
made public (provision of public apology is part of the agreement
made)
 The parties agree that confidential information given to a mediator
during a private meeting can be revealed to the opposing party.

Confidentiality in Early Neutral Evaluation and Expert Determination

 Confidential information can be provided to an expert (ED) or evaluator (ENE) unless
the parties agree that this should not be done.
 However, it is generally unwise for confidential information to be provided by one
party to the neutral where a decision has to be issued with reasons
 In such cases, the neutral should summarise information provided in private so that
all parties can ascertain the information relied upon in reaching the decision or
evaluation
 Private communications, whether oral or written, between one party and the
evaluator or determine may give rise to the appearance of lack of neutrality.

Confidentiality in arbitration and adjudication

 Arbitration and adjudication are confidential process
 Confidentiality is often reinforced by an express clause to maintain confidentiality in
the arbitration agreement or the applicable Arbitration Rules
 The duty of confidentiality is likely to extend to all documents produced in or
prepared for the arbitration
 However, there are exceptions which permit disclosure of confidential
communications made during the process. The exceptional circumstances are:
o The parties consent to disclosure;
o The court orders disclosure;
o Disclosure is required in the public interest (to prevent commission of a
criminal offence)
o Disclosure is necessary to protect legitimate interests of a party to the
arbitration
o There is a statutory duty to disclose information such as under the Proceeds
of Crime Act 2002;
o Disclosure is necessary to protect a party’s legal rights;
o The parties expressly or impliedly waive confidentiality.
 In adjudicative processes, it is not generally possible for one party to place
information before tribunal that has not been disclosed to the other side yet or to
have private meetings with the tribunal. Such an action would offend the rules of
natural justice and due process.