Financial Remedies Journal: AP v BP & Ors (financial remedies – appeal – disclosure

AP v BP & Ors (financial remedies – appeal – disclosure – privilege) [2023] EWFC 1699 March 2023

Published: 31/10/2023 12:58

Polly Morgan | Case EditorPolly Morgan is the sole author of the textbook Morgan's Family Law (2nd edn, Oxford University Press 2024) as well as the author of a number of Law Society practitioner courses on family law. A Professor of Family Law at UEA Law School, Polly is also Director of the multi award-winning UEA Law Clinic. A solicitor and law firm co-founder, she now practises exclusively in the free family law advice clinic of Norfolk Community Law Service. She is one of four trustees of the Transparency Project, and a legal blogger.

https://caselaw.nationalarchives.gov.uk/ewfc/2023/169

HHJ Vincent. The facts are as stated in this summary. On the husband’s discovery of the wife’s agreement with the intervenors he sought disclosure of the first agreement. W and the intervenors asserted that it was subject to privilege as they were prepared for the dominant purpose of pursuing legal proceedings which were either on foot or in reasonable contemplation as at the date of the agreement. The document stated at the top that it was privileged for this reason. Those proceedings were in relation to husband’s separation of Company A from Company B.

At first instance the DJ held they were privileged and should not be disclosed in the financial remedy proceedings. The husband appealed.

Held: Litigation was not contemplated at the time of the agreement, as they had no standing to bring proceedings at that time. Only when they became majority shareholders in Company B could they do so. There was litigation in progress, settled a month later, but the agreement did not relate to legal advice on that. ‘A recorded intention to obtain legal advice in the future does not cloak this document with legal privilege.’

‘The dominant purpose of the agreement was the implementation of the steps identified to bring about changes in the parties’ legal relationships, which shifted the tactical positions so far as the ongoing and future litigation was concerned. As such this litigation provided a context for the agreement, but having regard to the contents of the document itself and the evidence from the witness statements, it does not attract legal privilege.’

Accordingly, the agreement should be disclosed in financial remedy proceedings.