Yes, unless there are exceptional circumstances that require a statement to be disclosed to the court in the event that the dispute does not settle. This is known as the without prejudice rule or privilege. And the reason for this is quite straightforward - there is a public interest in encouraging parties to litigation to settle out of court. A recent decision of the UK Court of Appeal discusses one of the exceptions to this rule, the unambiguous impropriety exception. Under this exception a party may be allowed to give evidence of what his/her opponent said during settlement negotiations if the exclusion of that evidence would act as a cloak for some “unambiguous impropriety”. And what the decision of the UK Court of Appeal shows is how hard it is to successfully invoke this exception. The Courts are very reluctant to allow any erosion of the privilege and will carefully scrutinise any evidence put forward in an effort to lift the privilege. So parties to settlement negotiations can take comfort in the knowledge that, save in exceptional circumstances, what's said in the room stays in the room. Have a read of my more detailed briefing on this.
January 21, 2021
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