Pre-contractual negotiations are admissible only as surrounding circumstances, not to prove the terms of a contract variation. Post-contractual conduct is admissible as admissions where the question of the terms of a variation is one of fact. The rule in Browne v Dunn does not require a party to cross-examine an opposing witness on matters to which that witness did not depose; the party who wishes to contest unchallenged evidence bears the forensic burden of adducing responsive evidence. The question whether post-contractual conduct may constitute admissions on questions of mixed fact and law remains open.
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