(b) that following a process of detailed negotiations between the lawyers and counsel of each party, the issues were gradually reduced to such an extent that the essential elements of an agreement were probably in place on 29 August (it is difficult to determine a decisive moment). After reading the skeletal arguments, Lord Lord Stuart-Smith raised the question whether the agreement, even if concluded and written, could not violate the requirements of section 2(3) of the Property Law (Miscellaneous Provisions) Act 1989. That question led to an immediate amendment of the notice of appeal in order to introduce that additional argument at the beginning of the oral procedure. [i] Edgar v. Edgar [1980] 1 WLR 1410, in which the Court held on appeal that the wife in this case was bound by a prior agreement not to claim a lump sum by treating this agreement as conduct of the parties, which had to be taken into account when considering the criteria in section 25 of the Matrimonial Causes Act 1973. [ii] Please note: In the 2010 Code of Family Procedure, sections 2.2 (Interpretation) of the Glossary provide a definition of “without prejudice” which reads as follows: “Without prejudice – negotiations to reach an agreement are generally conducted `without prejudice`, meaning that the circumstances in which the content of these hearings may be disclosed to the court, and the glossary is defined as follows: “2.2 (1) The glossary at the end of these rules is a guide to the meaning of certain legal expressions in the rules, but should not be understood as giving those expressions meaning in rules that they do not generally have in law” [iii] As discussed in Sharland v Sharland [2015] UKSC 60 and Gohill v Gohill [2-15] UKSC 61. [iv] See Radmacher (formerly Granatino) v. Granatino [2010] UKSC 42 and DB v. PB [2016] EWHC 3431. [v] As in Kremen v. Agrest (financial recourse: secret: post-marital contract) [2012] EWHC 45 (Fam).
[vi] However, please refer to Article 9.9A of the 2010 Code of Family Procedure as amended by § 4 of the Code of Family Procedure (Amendment No. 2) 2016. [vii] Marital Causes Act, 1973. See also the recent Supreme Court decision Birch v. Birch [2017] UKSC 53. How would a judge determine that you have agreed to an agreement? Your lawyers may have created a “Heads of Agreement” document that lists all the points agreed between you. Alternatively, lawyers may have communicated on some minor wording points, but all other issues were resolved earlier. Lawyers may have written to the court to cancel a hearing on the grounds that an agreement had been reached. These could be factors that a court would consider when deciding whether a Xydhias agreement has been reached. Calderbank is just a variant that can prove what would otherwise be preferred when deciding on any cost issue. Mr Horowitz and Mr Bishop argued in their context that the applicable legal principles were derived from contract law and properly applied.
The only difference between ordinary contract law and the application of contract law in the area of ancillary representation is the effect of § 25, according to which the agreement must then be examined and approved by the court, which may refuse to give an appointment to the agreed terms. Such a question does not arise directly in this case, since both the District Judge and Hamilton J. correctly held that the agreement should be approved by the Court in accordance with the principles of Edgar v. Edgar [1980] 1 WLR 1410. The main issue in the present appeal proceedings is not difficult to decide on the application of the first principle. It is important not only to consider offers and counter-offers in their terminology, but also communication with the court and understanding of the parties involved. Apparently, the two lawyers understood that they had settled the case. Obviously, lawyers have understood that they do not need lawyers. Oral arguments were not served and the court was informed that the case had been settled and that the institution had been released. These beliefs were based on solid foundations.
In improvement actions, a clear distinction has always been made between the determination of liability and the determination of the guarantee for the performance of the obligation. In years when guaranteed provisioning orders were common, lawyers regularly settled cases on the assumption that if the amount of the annual payment could be agreed, the mechanism that would be triggered to guarantee the recipient in the event of default by the payer would be introduced separately and subsequently either by a new agreement, or by the decision of the court. I have no doubt that this long-established practice informs and explains the communication between lawyers, as well as their willingness to consider the details of properties to be included in the list as a minor matter and not as a precedent of a concluded agreement. If the question were to be decided on the stricter basis of the purely contractual principle, it would of course be necessary to examine the saga of the elaboration of the projects and the complementary exchanges between lawyers. The ambiguities and inconsistencies that such an analysis would reveal would all preclude a determination of the contract concluded in accordance with the de Pagnan principles. However, on the basis of the evidence before him, I have no doubt that the District Judge was correct in concluding that the parties had reached a compromise the week before the hearing. During this week, it was the husband who lobbied for a deal, and apparently there came a time when the wife agreed to her terms. All that remained unresolved was either mechanical or trivial. This is an indication that the husband had argued before the Regional Court not only that there was no agreement, but also that if there was an agreement, he could not be bound by it according to Edgar`s principles. Before that court, the husband did not pursue this second argument and therefore admitted that, despite his arguments, a compromise agreement had been concluded, there was no reason why he could avoid the passage to the order refined by the next court.
Thus, the two skeletons before that court assumed that the outcome of the appeal depended on the application of the de Pagnan principles to the facts. The negotiations in which we are engaged open the letter of 13 August, which is undoubtedly described as written on the basis of Calderbank. None of the written communications between the defense lawyers indicate their status and there is no evidence of the basis on which the lawyer himself reviewed the negotiations. Relevant letters between lawyers carry the security label in some cases, but on and after August 28, the wife`s lawyer removed the “without prejudice” label from her letters and it was not used by the husband`s lawyers throughout the relevant exchange. Apparently, the point was not discussed below, since the husband merely relied on the allegation that no agreement had been reached. No objection was raised before the District Judge against the admission of evidence for negotiations or concessions made in the context of a non-prejudiced communication. In fact, it was the husband who first sought permission to present the testimony of his trial counsel. Of course, an agreement serves to open correspondence without prejudice, and if there is a dispute as to whether this step has been reached or not, the intact protocol must be allowed to clarify this issue. Since I have no doubt that an agreement has been reached, this issue does not need to be further examined. Only a court can turn an agreement into a court order. By entering into an agreement with your spouse, you do not automatically create a binding agreement. However, this does not mean that you are free to change your mind at any time until a judge gives your consent to an order.
“Terms have been agreed between the parties, and subject to agreement on the terms of the proposed consent order and the provision of security by Mr. Xydhias, the respondent, to support his proposals, the issues will be agreed […].