The without prejudice privilege attaches to evidence of settlement negotiations aimed at resolving disputes, and prevents such evidence being referred to in proceedings. However, privilege will fall away where both parties waive it, and can also be withdrawn where it would otherwise conceal unlawful behaviour.
Vaseghi and Webster brought claims of race discrimination against Brunel University. The without prejudice discussions to settle the disputes were unsuccessful and tribunal hearings went ahead. Subsequently, in a university newsletter, the vice-chancellor complained about the cost of defending the claims, and alluded to the fact that the claims had been accompanied by "unwarranted demands for money". Vaseghi and Webster brought victimisation grievances and tribunal claims on the basis of these comments. An independent panel set up by the university heard the grievances, including evidence about the without prejudice discussions.
The tribunal pleadings and bundle also contained various references to the settlement discussions. However, when Vaseghi and Webster disclosed a statement by a solicitor about these discussions, the university's lawyers objected on the basis that the evidence was without prejudice.
The Court of Appeal said that privilege had been waived on the basis that both parties:
- Gave or called evidence of the without prejudice discussions at the independent panel review (an unusual forum as it was adversarial in nature and a formal trial)
- Referred to the without prejudice discussions in their respective pleadings.
However, the court said that, in normal cases where without prejudice discussions are mentioned at internal grievance meetings, privilege would