Facts – the wife’s solicitors prepared a trial bundle (the husband was in person) they had inadvertently put before the court a bundle containing the husband’s without prejudice offer without any reference to him and without any discussion of it at any time.

The error appears to have been caused by the fact that this was an updated version of the FDR bundle which had not had the “without prejudice” correspondence removed.  The trial judge relied on the contents of the without prejudice offer in his judgement though neither party had referred him to it and counsel for the applicant had only referred to open offers.

The respondent appealed Sir Jonathan Cohen dealing with the appeal at paragraph 17 said “it is necessary to touch on the law in relation to without prejudice documentation. Privilege is, of course, the privilege of the client and not of the solicitor or legal advisor. Privilege cannot be waived by solicitors on their own. The without prejudice rule governs the admissibility of evidence and is founded upon both the public policy of encouraging litigants to settle their differences rather than litigate them to a finish and the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence. That well-established principle has been approbated by the House of Lords in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280

He went on to say at paragraph 23  – I have great sympathy with the judge. He was, in effect, handed a booby-trapped bundle containing a document that should not have been there. He was not given the help by the lawyers that he should have been given when he came to ascertain what the husband’s offer actually was but it does seem to me that faced with the sudden discovery, as he was, when preparing his judgment of a without prejudice offer, it was not open to him simply to rely on that. He should have referred the matter back to the parties to discuss what course he should take, whether he should continue with the case himself, or how else he should proceed.

The Learned Judge went further and delayed publication of his judgement until the conclusion of the matter saying “I shall embargo publication of this judgment until after the rehearing of the case. I have asked the Family Division Liaison Judge to allocate a judge to take over its management and disposal. It would be too awful to contemplate a further hearing being compromised by the new trial judge reading this judgment.

Though not dealt with in the bundle it seems inevitable that the solicitor preparing the bundle will be responsible for the wasted costs of the first trial and possibly further claims from their client in respect of the delay it caused and the impact on her and the children.

Jo Ashwell

Trinity Chambers

26 May 2023