Scheldebouw BV v Evanson (PRACTICE AND PROCEDURE) [2022] EAT 157 (25 March 2022)

Scheldebouw BV v Evanson (PRACTICE AND PROCEDURE) [2022] EAT 157 (25 March 2022)

The central question is whether, at the relevant stage in negotiations, the parties contemplated or might reasonably have contemplated litigation if they could not agree. The Employment Tribunal correctly applied this objective test and found that, prior to December 2018, the parties were not in dispute and litigation was not in reasonable contemplation. Therefore, 'without prejudice' privilege did not apply to discussions before that date.

Citation
[2022] EAT 157
Parties
Appellant: SCHELDEBOUW B. V; Respondent: MR M EVANSON
Jurisdiction
United Kingdom
Judgment Date
25 March 2022
Procedural Posture
Employment Appeal Tribunal / Appeal Against Preliminary Ruling on 'without Prejudice' Privilege
Outcome
Appeal dismissed
Legal Topics
Without Prejudice Privilege, Evidence Admissibility, Settlement Negotiations, Unlawful Deduction From Wages, Holiday Pay
Employment Law Civil Procedure Without Prejudice Privilege Evidence Admissibility Settlement Negotiations Unlawful Deduction From Wages Holiday Pay

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Parties

SCHELDEBOUW B. V

Appellant

MR M EVANSON

Respondent

Procedural Posture

Employment Appeal Tribunal / Appeal Against Preliminary Ruling on 'without Prejudice' Privilege

Legal Issues

  1. 1 At what point do discussions between parties become covered by 'without prejudice' privilege in employment disputes?
  2. 2 Did the Employment Tribunal err in law or act perversely in determining the timing of privilege?

Ratio Decidendi

The central question is whether, at the relevant stage in negotiations, the parties contemplated or might reasonably have contemplated litigation if they could not agree. The Employment Tribunal correctly applied this objective test and found that, prior to December 2018, the parties were not in dispute and litigation was not in reasonable contemplation. Therefore, 'without prejudice' privilege did not apply to discussions before that date.

Court Disposition

Appeal dismissed

Orders

  • The Employment Tribunal's decision stands; discussions prior to December 2018 are not privileged and may be relied on in evidence, subject to agreed redactions.