BY now sought a declaration that the WP material was inadmissible, and therefore the decision should
not be enforced.
The court had to determine whether the material was WP and whether, contrary to the general rule that
WP communications are inadmissible, it was, as an exception, admissible. The existence of one of the
exceptions was reiterated in Unilever Plc v The Proctor & Gamble Co 8 , in which Robert Walker LJ
said:
' Nevertheless, there are numerous occasions on which, despite the existence of without prejudice negotiations, the without prejudice rule does not prevent the admission into evidence of what one or both of the parties said or wrote. The following are among the most important instances. (1) As Hoffmann L.J. noted in Muller's case, when the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible….
BY argued this exception applied and this entitled the adjudicator to look at the WP material. But this
gave rise to a practical issue on which neither counsel was aware of any authority: could the decision-
maker having viewed the material to determine its admissibility, then fairly go on to decide the
underlying issue or dispute to which the material was relevant or would the material create a bias one
way or the other? His Lordship said this: “… it seems to me clear that the decision-maker must in these circumstances explicitly consider whether having had sight of the adverse documents means that they should no longer determine the dispute by reference to the
test of apparent bias. If they consider the apparent bias test is met, they should decline to determine the
remaining dispute. If they consider that, notwithstanding the sight of the communications, they can
nevertheless fairly (judged by the test of apparent bias) proceed to consider the dispute, they should do so.”
The court concluded that the WP material was inadmissible and the adjudicator ought not to have
considered it. The court went on to hold there was in any event no concluded agreement. Even if the
deployment was legitimate, in circumstances as here where no such agreement was in fact concluded,
it was incumbent upon the decision-maker thereafter to reflect upon their ability to resolve the extant
dispute (which was not compromised as a result of without prejudice negotiations) fairly, having seen
documents which contained material (such as explicit or implicit admissions) adverse to one party.
It was then necessary to apply the ‘apparent bias’ test. Would a fair-minded and informed observer
conclude that there was a real possibility that, having seen the WP material, the adjudicator was biased?
The court concluded this was a case where there was apparent bias because:
8 [2000] WLR 2436
9
Made with FlippingBook flipbook maker