Marshall v Prescott

In *Marshall v Prescott*, the applicant sought leave to appeal from costs orders made by a judge of the Common Law Division on an issue-by-issue basis. The applicant wished to challenge the judge's conclusions on certain issues, but not the ultimate decision in the proceedings. The appeal also concerned the validity of subpoenas issued to a non-party, raising questions about legal professional privilege at common law, including common interest privilege and privilege attaching to litigation funding agreements.

The primary legal issues before the Court of Appeal were whether an appellate court should review intermediate conclusions for the sole purpose of appealing costs orders, and whether legal professional privilege attached to communications and agreements involving a non-party claiming by subrogation and funding the litigation. Specifically, the court considered whether a common interest existed between the litigant and the subrogated party to preclude a finding of waiver of privilege, and whether a litigation funding agreement itself was protected by privilege.

The Court of Appeal granted leave to appeal in respect of certain costs orders and allowed the appeal in part, varying one of the costs orders. The court reserved for future consideration all questions of costs relating to the application for leave to appeal and the appeal itself. The court also made orders suppressing certain information from publication for a specified period, granting liberty to a non-party to apply for an extension of that period.