Early Negotiations Aimed To Prevent Litigation Are Without Prejudice

The Court of Appeal has recently confirmed that early negotiations prior to the commencement of litigation can be protected by ‘without prejudice’ privilege.

In Barnetson v Framlington Group, negotiations took place between the parties in relation to an employment contract five months before litigation was commenced and before either party had even threatened litigation. In the litigation one party attempted to rely on the negotiations. The court initially held that the negotiations were not without prejudice because they took place before the commencement of litigation or any basis for litigation. The Court of Appeal overturned this decision and held that they were without prejudice communications and were privileged.