Marwan Bedea Qassem Said Koukash v Amanda Anne Koukash

Without prejudice privilege is a joint privilege belonging to the parties. Its accidental inclusion in a court bundle does not, without more, establish waiver or acquiescence. The court must not rely on privileged settlement material merely because it has come into the judge’s possession. If the material is discovered during preparation of the judgment, the judge should refer the issue back to the parties and consider whether the proceedings can properly continue. An appellate court should not assume that the same result would have been reached without the privileged material where the first-instance judge expressly relied on it.

The husband appealed part of a financial remedy order made by HHJ Greensmith on 30 November 2021. Permission was granted by Peel J on 17 January 2022 in relation only to the order for payment of £400,000 as part of a £510,000 lump sum.

The trial judge had relied on a without prejudice offer that had inadvertently remained in the hearing bundle. The central issue was whether the inclusion of that document, and the events surrounding it, waived privilege or permitted the judge to rely on its contents.

1. Appeal allowed and case remitted. The first-instance judge had relied on a without prejudice letter when determining that a further £400,000 was available to the husband. That formed part of the £510,000 lump sum.
2. Without prejudice privilege protects communications made in settlement negotiations. It is founded on the policy of encouraging settlement and on the parties’ agreement that such communications will not be admissible. The privilege belongs jointly to the parties and cannot ordinarily be waived unilaterally by one party’s solicitors. The court may use without prejudice material in exceptional circumstances where justice requires it, but must give proper weight to the purpose of the rule, as recognised in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280.
3. The accidental inclusion of the husband’s letter in a bundle did not establish waiver or acquiescence. The relevant contents had not been addressed during the hearings, and the discussion on 6 October did not clearly identify the correspondence as without prejudice material.
4. Although the judge might arguably have reached a similar figure from other evidence, the appellate court could not go behind the judge’s express statement that he had relied on the privileged letter. It was not open to the appellate court to assume that the same conclusion would have been reached without it.
5. On discovering the letter while preparing judgment, the judge should have referred the matter back to the parties and considered whether he should continue with the case or adopt another course. The matter was therefore remitted for rehearing and management by another judge. Publication of the judgment was embargoed until after the rehearing.

• High Court (Family Division): appeal allowed against the relevant part of HHJ Greensmith’s order dated 30 November 2021. The case was remitted for rehearing.
• Permission stage: Peel J granted permission to appeal on 17 January 2022 in respect of the £400,000 element only.