Cohen J. Appeal from decision of HHJ Greensmith on quantification of lump sum, which had been based on privileged FDR documents.

The first instance judge had to determine what amount of lump sum was to be paid by H to W. Both H and W had on and off legal representation. W sought £2 million. H offered £300–350,000 (he was not clear) to be used to buy a house to be held on trust for the children with W having what H termed ‘living rights’. He argued that his assets really belonged to other family members.

At FDR, H had offered £350,000 plus £10,000 pa for 5 years, i.e. £400,000. The FDR bundle containing this offer was used as the basis of the trial bundle without the without prejudice offers being removed. It appears that the judge became aware of this only when writing the judgment, in which he then wrote ‘I am making what I consider to be a reasonable presumption (sic) that any privilege (if it existed) has been waived.’ He used the without prejudice document to find that H could provide £400,000 and added to this the value of H’s two cars, to give W a lump sum of £510,000. H appealed.

Held: A party is not entitled to rely upon the contents of without prejudice discussions with another party in order to advance the case at trial unless subsequent conduct by the other party entitled it to do so: Somatra Ltd v Sinclair Roche & Temperley (A Firm) [2003] EWCA Civ 509. Here, judge was handed a booby-trapped bundle and not given help by the lawyers that he should have been given. It was not open to him to rely on the sudden discovery of the without prejudice offer, 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. Appeal therefore allowed. Publication of this judgment withheld until completion of retrial.