The court then proceeded to analyse the references in the letters constituting the Contested Material. Objectively construed, the first letter in that correspondence, which was sent by the Lawyers on behalf of the claimant, evinced a clear intention to use evidence about the WP negotiations at a future costs hearing. This could be viewed as an anticipatory repudiatory breach of the agreement to treat the negotiations as WP but, the judge concluded, was better characterised as an offer to vary the agreement’s terms. That offer had been accepted on behalf of the Executors in their response to the letter, which made it clear that both parties would be able to deploy evidence of the negotiations for the purposes of arguments about costs.
The court concluded that the parties had, by their correspondence marked WP save as to costs, agreed that “everything said and done at the mediation by or on behalf of either party … could be referred to at a future costs hearing”. In effect, the parties had agreed to vary the WP rule to treat the settlement negotiations as if they had been conducted on the basis that they were WP save as to costs. Evidence of those negotiations was therefore admissible, solely on the basis of an agreement between the parties, which was binding on the Lawyers. The WP material could therefore be deployed by the Executors in their claim for costs against the Lawyers.
ABOUT THE AUTHOR
Matthew Eglezos Senior Associate
Matthew is a senior associate in the firm's dispute resolution division in London.
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