For the purposes of that application, the Executors sought to rely on references to what was said and done at, and shortly after, one of the mediations, which communications were agreed at the time to be WP. Those references were included in four letters between the parties’ solicitors that were marked “without prejudice save as to costs” (the “Contested Material”). The Executors argued that the Contested Material was admissible in the costs application on the basis that: - the WP rule did not apply to the Contested Material; - if it did apply, the case fell within an exception to the WP rule for statements wholly unconnected with the issues between the parties in the proceedings or for negotiations used as a cloak for impropriety; or - the right to rely on the WP rule had been waived for the purposes of arguments concerning the costs of the malicious prosecution claim. Decision The court (Andrews J) concluded that the WP rule did apply to the Contested Material and that no relevant exception to that rule was engaged. However, the Contested Material was admissible in relation to the Executors’ costs application because that material indicated that the parties had agreed to vary the WP status of the settlement negotiations. In reaching that conclusion, the court adopted what it described as Fancourt J’s “masterly analysis” in Briggs v Clay [2019 EWHC 102 (Ch) (considered here) of the relevant principles and authorities in relation to the WP rule and its exceptions. Application of the WP rule and exceptions to it The judge said that the Executors’ first two propositions could be tested by considering what