An unfair advantage?

It is a well-established doctrine that, subject to certain exceptions, written or oral communications made in a genuine attempt to compromise a dispute between the parties cannot be admitted in evidence. The “without prejudice” rule is a clear example of public policy, as the promotion of the settlement of disputes without recourse to litigation is a central aim in our legal system. It enshrines the principle that parties are able to negotiate openly without fear of being attacked by having their words quoted back at them in open court.

In the recent case of Brodie v Nicola Ward (t/a First Steps Nursery) [2008] All ER (D) 115 (Feb), UKEAT/0526/07, an employee attempted to overturn a ruling by the employment tribunal that a letter sent to her by solicitors acting for her employer was subject to the rule and therefore inadmissible. She argued that the letter amounted to a “last straw” that had caused her to resign and