Should a claimant be allowed to refer to 'without prejudice' material in support of an argument that a COT3 agreement could not be relied upon because of misrepresentation?
Yes, held the EAT in Cole v Elders Voice.
A COT3 agreement can be challenged on the same basis as any other agreement. A tribunal can investigate the circumstances in which it is alleged that a COT3 agreement is liable to be avoided. Thus, misrepresentation can form the basis on which a tribunal could set aside a COT3 agreement.
For these purposes a tribunal can consider 'without prejudice' material. This is because an exception to the 'without prejudice' rule applies to cases in which it is argued that an agreement apparently concluded between the parties should be set aside on the ground of misrepresentation.
Thanks to Tim Kenward of 7 Harrington Street Chambers for preparing this case summary.