Broad interpretation of prohibition on presenting documents containing settlement offers in civil proceedings
In 2008, a new Article 309.a was added to the Contentious Civil Procedure Act (Zakon o pravdnem postopku, ZPP), stating that documents which include an opposing party’s concrete offer to settle and which were presented during negotiations or dispute settlement proceedings, may not be presented as evidence in civil proceedings. This prohibition on producing evidence has been interpreted broadly by the courts, including the Supreme Court of Slovenia.
The provision concerned serves as an incentive for parties to resolve their disputes amicably and without fear that showing a will to negotiate might be used against them in subsequent legal proceedings. In this regard, the Supreme Court stated (in judgement VIII Ips 238/2015, dated 23 February 2018) that the prohibition on presenting documents applies not only to settlement agreements, which were prepared during a certain legal procedure or for its needs, but to all the documents presented during negotiations or in dispute settlement proceedings. In the specific case, the Supreme Court considered a settlement offer regarding payments arising from an employment relationship, which was presented after the employment relationship was (unlawfully) terminated, but before an action seeking the payments was brought, as forbidden evidence. It should be noted that the prohibition of presenting evidence also applies to oral settlement offers (judgement IV Cp 2219/2016).
However, the prohibition of presenting documents that include settlement offers has certain limits. An expert opinion itself is not a settlement offer, but may only be considered as a basis for it, so its use in the proceedings does not constitute a breach of Article 309.a (judgement II Ips 59/2016). It also does not limit the right of the party that made the settlement offer from presenting this offer in subsequent legal proceedings (judgement I Cpg 861/2010).
The abovementioned prohibition on presenting documents and its broad interpretation by the courts provides predictability and legal certainty to all persons which are, or could in the future be party to civil proceedings. This is due to the fact that it negates the possibility that an opposing party might use one’s willingness to negotiate in their favour, such persons may strive to settle the disputes amicably and thus avoid the (long-lasting) legal proceedings with more confidence.
