Sentences with phrase «unambiguous impropriety»

(iv) If the exclusion of the evidence would act as a cloak for perjury, blackmail or other «unambiguous impropriety».

However, Cox J went on to consider the alternative submission that the unambiguous impropriety exception applied.

«Unambiguous impropriety» amounts to a catch - all description of situations where the cloak of the without prejudice rule acts so as to shield some bad action on behalf of the party invoking it, and is in effect an exception based upon the rule of unconscionability — that such bad action should not be protected by a rule of public policy.

These factors include, for example, where the question of whether a concluded compromise has in fact been reached; whether a dishonest case would otherwise be advanced, and where there is an element of unambiguous impropriety.

This obiter comment has been the subject of significant academic criticism, on the bases, inter alia, that it artificially sought to create a further exception to the without prejudice role in the field of discrimination; and that it ran contrary to the case law, such as Fincken, which made clear that the unambiguous impropriety exception should be confined to very tight parameters, despite Ofolue making clear that the categories of exceptions to the rule were not closed.

Cox J accepted the submission that, particularly in sex and race discrimination cases, which by their nature are fact sensitive and thus it is essential that all the facts are known, in the example of the employer that states under the cloak of the without prejudice rule «we do not want you because you are black», such a statement would fall within the unambiguous impropriety exception.

The limits to such free speaking fall within the existing exception of unambiguous impropriety, which «applies only in the very clearest of cases».

This sentiment is in accord with the dicta of Robert Walker LJ in Unilever Plc v The Proctor & Gamble Co [2001] 1 All ER 783 that: ``... this court has... warned that the [unambiguous impropriety] exception should be applied only in the clearest cases of abuse of a privileged occasion».

We doubt whether Cox J intended to say that it was unnecessary, in a discrimination case, to find unambiguous impropriety.

Even if the employer gets past this first hurdle, eg the parties are at loggerheads over a performance plan, it can not rely on «unambiguous impropriety».

Clearly if discrimination is being cloaked by the operation of the rule, there may conceivably be circumstances in which a preliminary issue hearing to determine whether or not the rule is in fact being used as a cloak for unambiguous impropriety should be necessary; but, as the law stands, those circumstances will be rare.

Nor was there anything in the sending of the letter that could amount to unambiguous impropriety.

Where an employee claims that such an offer amounts to a last straw and resigns they will be prevented from relying on the contents of the letter unless it can be shown that there is some unambiguous impropriety; but the mere sending of such a letter can not possibly amount to this.

Once there is a dispute or potential for a dispute, which should be widely construed from the factual circumstances, the unambiguous impropriety exception will apply only sparingly and after full consideration.

Without prejudice communications between the parties are prima facie not admissible before the tribunal unless both parties agree, or where admission is required to prove the existence of an agreement, or where non-disclosure would amount to the concealment of unambiguous impropriety or otherwise allow a dishonest case to be advanced.

Judge Lewzey also misdirected herself in relation to the alternative ground of unambiguous impropriety, and confused that exceptional situation with a consideration of what might be prejudicial to one party in the litigation, and risked not fully appreciating how limited the doctrine is.

She argued there that not to allow her to rely upon the contents of the letter of 25 January 2007 amounted to a dishonest case or alternatively that the unambiguous impropriety exception should apply.

[2014] IRLR 251, [2014] All ER (D) 52 (Jan)(judgment handed down on 5 November 2013, but embargoed until the conclusion of the hearing proper to avoid prejudice) considers both the issue of when there is a dispute, so as to engage the without prejudice rule, and also the question of the applicability of the «unambiguous impropriety» exception.

Judge Lewzey found in effect that while the parties were negotiating in respect of a compromise agreement, there was not at that time a dispute, and further, the unambiguous impropriety exception was engaged.

It is notable that HHJ Hand comments that in his view Mezzotero was really determined on the basis that there was no dispute, notwithstanding the analysis of the unambiguous impropriety exception.

As it stands, the law regarding this exception is that one party may be allowed to give evidence of privileged discussions if the exclusion of such evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety.

However in Woodward v Santander plc UKEAT / 0250/09, [2010] IRLR 834 it was determined that rather, it was an application of the unambiguous impropriety exception.

In respect of the unambiguous impropriety exception, he cited Lord Justice Rix in Savings & Investment Bank Limited (in liquidation) v Finken [2004] 1 WLR 667, [2004] 1 All ER 1125 and summarised the position as being that «no matter how important the admission might be for the potential litigation, unless it can be said to arise out of an abuse of the privileged occasion, such as where it is made to utter «a blackmailing threat of perjury» (see 684E) its significance alone can not result in the admission being released from the cocoon of the «without prejudice» exclusion and into the glare of the forensic arena» (at para 20).