- Ambiguity defrosted? Court of Appeal clarifies ‘unambiguous impropriety’ exception to without prejudice privilege in freezing injunction context (Motorola v Hytera and Shortway)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Dispute Resolution analysis: Parties cannot abuse without prejudice privilege (WPP) to conceal their own ‘unambiguous impropriety’. Lord Justice Males held this exception to WPP had been misapplied at first instance. The proper test is narrow, being met only where rigorously scrutinised evidence shows nothing less than impropriety which is truly unambiguous. The ‘good arguable case’ standard has no place in that inquiry. Consequently, the critical evidence upon which the judge had granted a freezing order was inadmissible. The Chabra jurisdiction therefore could not apply as against Hytera’s subsidiary. The case is a timely reminder that WPP does not afford absolute protection. Legal advisers must be conscious of its limits and the consequences of exceeding the same. However, Males LJ’s strict confinement of the exception is staunchly pro-settlement. It offers encouragement for parties to negotiate in good faith, with confidence in the protective veil of privilege. Written by Rob Hammond, barrister, at Hardwicke.
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