Admissibility (or not) of without prejudice offers on costs

Admissibility (or not) of without prejudice offers on costs

The Employment Tribunal was wrong to consider ‘without prejudice’ correspondence in its determination of costs following dismissal of a discrimination and harassment claim.

Overturning the costs decision on appeal HHJ Eady QC considered the important distinction between correspondence marked ‘without prejudice’ and that marked ‘without prejudice save as to costs’ before concluding:

“it is apparent that the ET had regard to without prejudice material that was not marked “without prejudice save as to costs” and did not, in the body of the document, suggest that was its purpose; that was wrong (see Reed v Reed) … It is also apparent that the Claimant’s privilege could not be, and was not, waived by any reference to his counter offer in the Respondents’ correspondence. The ET’s decision is thus vitiated by its reliance on material to which it should never have been referred.”

HOSSAINI v EDS RECRUITMENT LTD (T/A J&C RECRUITMENT) & ANOR [2019] UKEAT 0297_18_1605