Court considers whether exchange of emails constituted settlement agreement (High Court)

Objectively, and considering the whole course of negotiations, the parties had intended to reach a final and binding settlement on the exchange of emails, without the need to agree further terms. The agreement was not subject to contract. It was expressed to be in full and final settlement of all claims between the parties, counterclaims and costs. Although the underlying litigation was complex, there was no complexity about the settlement negotiations that could lead to the conclusion that settlement could only be reached when the parties had signed a formal agreement.

During the course of negotiations, the defendant had made no attempt to reserve its position in relation to third party claims. A subjective and internal reservation of its position was immaterial to the question whether a binding agreement had been reached.

Contrary to a previous offer made by the defendant, the offer the claimants accepted was not expressed to be subject to contract and could not be construed as including any such qualification. The settlement was driven by an intention to settle before a further tranche of brief fees became payable. Moreover, the response of the defendant: "Noted, with thanks", suggested that no further terms had to be considered.