Adam Walker succeeded in the Court of Appeal on 1 March 2016 in an appeal relating to the introduction of ‘without prejudice’ material.
Following the settlement of a commercial dispute at the door of court the parties agreed that the issue of costs should be left to the trial judge to determine. During costs arguments the respondent sought to introduce a note prepared by previous counsel following a hearing a year earlier, which purported to record an exchange that included offers in settlement. The note was produced during oral submissions as to costs without a copy being provided to the appellants beforehand and was relied upon heavily by the judge when making the costs order that was ultimately made.
The Court of Appeal (Lord Dyson MR, Sharp LJ and Hamblen LJ) upheld the appellants’ appeal on the basis that the exchange and the note that purported to record it attracted ‘without prejudice’ privilege, they were not ‘without prejudice save as to costs’, that there had been no waiver of privilege as the appellants had not sought to deploy the material themselves and as the respondent had failed to comply with the guidance of Stanley Burton J in Berg v IML London Ltd  1 WLR 3271, which the Court of Appeal repeated. The exercise of the judge’s discretion below was therefore flawed and the Court of Appeal exercised its discretion afresh.
Reported as Ivan Russ Cammack v (1) Mark Ashby (2) Gresham Pension Trustees Ltd, The Trustees of the Arbuthnot SIPP M Ashby (2016).
The case can be found reported on Lawtel at LTL 2/3/2016, Document No. AC9502299