Without Prejudice Discussions Sometimes Can Be Disclosed

Communications that take place on a ‘without prejudice’ basis are, in most circumstances, protected from disclosure, but in some circumstances disclosure of the contents of without prejudice communications can be permissible.

In a recent case, without prejudice mediation discussions which took place between the directors (a Mr Hall and a Mr Watts) of two companies were the subject of a comprehensive confidentiality clause in the mediation agreement. This prohibited the disclosure of any statement, document or other information arising out of the mediation process.

During the course of the discussions, Mr Watts was alleged to have threatened Mr Hall, which Mr Hall disclosed to associates of his. Following the discussions, Mr Hall also made certain allegations about Mr Watts to the police.

The judge, whilst accepting that the confidentiality of mediation proceedings does need to be guarded with great care, so that they can proceed in a spirit of openness and frankness, concluded that in this case the disclosed information (especially that given to the police) was not the subject matter of the mediation and was not therefore confidential.

There are circumstances in which the confidentiality principle attaching to without prejudice discussions can be breached. It is therefore sensible to have your lawyer present during discussions of this nature. We can assist in facilitating all negotiations and draft suitable non-disclosure agreements where necessary.