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Pre-Hearing Reviews and Without Prejudice Material

29 May 2012

In Eversheds LLP v Gray, the Employment Appeal Tribunal (EAT) has directed that a pre-hearing review (PHR) to determine whether or not certain communications between the parties involved in a disability discrimination case were inadmissible, because they were ‘without prejudice’ and therefore subject to legal privilege, should be held in private.

Mr Gray brought various claims of disability discrimination against Eversheds LLP. In setting out his case in his Particulars of Claim, he referred to a number of discussions between his legal adviser and representatives of the respondent. Eversheds claimed that some of this material should be ruled inadmissible, relying on without prejudice legal privilege. This issue was to be determined at a PHR and Eversheds applied for this to be held in private.

Rule 16(1)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 provide that a PHR may be conducted in private where evidence or representations are likely to consist of information communicated to that person in confidence. In this case, it was accepted that the Employment Judge would hear oral evidence from four witnesses as well as considering documentary evidence and submissions.

The Employment Judge rejected the application on the grounds that any material found to be without prejudice could be withheld from the Employment Tribunal (ET) at the full hearing or disregarded by the panel. Eversheds appealed against this decision and won.

The EAT found that the Employment Judge had erred in law as she had failed to satisfy the necessary test when determining whether or not Rule 16(1)(b) applies. Firstly, there had been no clear finding as to whether without prejudice material is, by its nature, confidential and, secondly, no finding had been made as to whether or not it was likely that the material in question would consist of genuinely confidential information.

In the EAT’s view, it is common ground that true without prejudice discussions aimed at settling a legal dispute are confidential and it was likely that some of the material in question would be genuinely without prejudice. Having answered those questions, the EAT went on to carry out the necessary balancing exercise between public policy considerations of the need for a public hearing, so that justice may be seen to be done, and the need for confidentiality in without prejudice negotiations designed to resolve existing or contemplated legal proceedings. Having balanced these competing policy interests, the EAT allowed the appeal, comforted by the knowledge that if Mr Gray were right and the discussions in point were not covered by without prejudice protection, this would be made clear in the PHR judgment and the material would then be admissible at the full ET hearing held in public.

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