McWILLIAM & ORS v WATSON & ORS

HIS HONOUR: Further objection is taken on behalf of the defendants to the reception of this evidence in reliance upon s 131 of the Evidence Act (1995), since it is evidence of settlement negotiations.

In essence, the evidence sought to be adduced is that, when the possibility of settlement was raised on behalf of the plaintiffs by Mr Forsyth, the question whether the summons should be filed was discussed by the solicitors for the plaintiffs with Mr Thompson for the defendants, who indicated that, in his view, successful negotiations could not occur if those proceedings were commenced. It was because of this intimation that they were not commenced.

Having allowed this material as fresh evidence, subject of course to the instant objection, the question seems to me to be whether this material, if it had been available to the Master, would have been admitted properly by her.

The case for the defendants before the Master, amongst other things, was that there had been an unjustifiable delay in seeking an extension of the time limits specified in the self-executing orders. This necessarily made the course of the negotiations, in so far as they explained the delay, admissible, and in my view reliance is rightly placed by the plaintiff on section 131 (2)(g) supporting the admissibility of these documents. I so rule.