the position would have been if the Contested Material had not been sent and the Executors had sought to rely on the evidence of the mediation. In such circumstances, that material would have been inadmissible.
The Executors contended that the WP rule did not apply in later unconnected proceedings to protect statements in earlier proceedings which were unconnected with the subject matter of those proceedings. The court held that even if that were correct (which the court did not need to decide), and even if the costs claim against the Lawyers was to be treated as litigation independent of the malicious prosecution claim, the costs claim was nonetheless “intimately connected” with it.
The court also rejected the argument that the WP protection afforded to the claimant could not be relied upon by his Lawyers in a subsequent application against them for costs. The situation in this case was “very similar” to that in Briggs, where the legal representatives of one of the parties were held to be bound by the WP rule in a claim made against them.
The court then turned to consider whether there was a relevant exception to the WP rule (pursuant to which the Contested Material might be rendered admissible). The court concluded that no such exception arose. The court dismissed, in relatively short order, the suggestion that the exception to the WP rule which allowed the admission of evidence to prove some impropriety had any application in this case.
The court also rejected an argument that Contested Material fell within an exception for “independent facts” which were in no way connected with the merits of the case. The “independent fact” which the Executors said the evidence established was the “extent of the influence or control” that the Lawyers had over the malicious prosecution claim. The court did not see how such a fact could be segregated from the content of the settlement negotiations themselves, and considered that admitting the evidence for that purpose would undermine the policy of the WP rule.
Waiver and the parties’ agreement to deploy the WP material
The court noted that there was no reason why the parties could not enter into an agreement to vary the effect of the WP rule. Such an agreement or waiver was not to be lightly inferred, but the parties could expressly agree that communications were WP save as to costs.
As established in the authorities, once the protection of the WP rule had been waived, the waiver covered the whole of the WP communications and not just those aspects that one party had sought to deploy. The court noted that in this case neither party had actually deployed WP material, though they had indicated an unequivocal intention to do so in the relevant correspondence.