Ruling of the Tribunal concerning the admissibility of certain correspondence in the context of a costs application following the Tribunal’s decision in [2024] CAT 8, where Mr Hammond was granted carriage over Ms Hunter in a claim against Amazon.
Mr Hammond submitted two versions of his costs application dated 7 March 2025:
- Application A: excluded the disputed correspondence.
- Application B: included the correspondence, the admissibility of which was contested.
The costs application was to be determined by a panel chaired by Sir Peter Roth. Both parties agreed that the issue of admissibility should be decided without an oral hearing by a different Chairman.
The correspondence in question comprised:
- An email dated 23 May 2022 from Hausfeld to Charles Lyndon.
- Unspecified communications regarding potential co-counselling between the parties’ legal representatives.
Ms Hunter argued that: (i) the 23 May 2022 email was protected by litigation privilege; and (ii) subsequent communications were protected by the without prejudice rule.
Mr Hammond disputed both claims.
The Tribunal found:
- The 23 May 2022 email was not protected by either rule. At the time, no dispute had arisen between the parties, and the communication was not confidential. It was between firms that later represented opposing parties, and either was entitled to rely on it.
- The subsequent correspondence did not involve substantive negotiations, was not marked ‘without prejudice’, and merely raised the possibility of avoiding a carriage dispute. No admissions were made, and both parties agreed there were no substantive discussions.
Accordingly, the Tribunal held that neither litigation privilege nor the without prejudice rule applied. Mr Hammond was therefore entitled to rely on Application B in his costs application.
