Richard Miller wrote:

The acceptance was induced by the negligent misstatement that a
higher offer would not be made, therefore damages equivalent to
the difference between the lower and higher offers would be due to
the Claimant.

It looks like you're mixing tort and contract damages. The statement
that a higher offer was not negligent - it was a negotiating statement.
It doesn't matter whether it was true or not. Unless a blatant
misrepresentation of substantive facts was made (that statement would
not qualify as substantive), no compensation should be provided.

The acceptance was not an acceptance, given the reference to
previous interim payments, but a counter-offer that was never
accepted.

Agreed.

The ethical point is borderline, but in view of my second point
above, and in view of the negligence of the defendant's solicitor,
I would say that it just about falls on the right side of the
line. But only just about.

How is it even borderline? What should the opposing solicitor have
done? Yes, I suppose it would have been a friendly gesture to have
said, "Well, you know that this offer is £20,000 higher than my last
offer to you, don't you?" But since the solicitor owes a duty to his
own client and not to the opposing solicitor or his client, I don't see
anything at all wrong with simply accepting the offer.

Stu

In message , Stuart A.
Bronstein writes
Richard Miller wrote:

The acceptance was induced by the negligent misstatement that a
higher offer would not be made, therefore damages equivalent to
the difference between the lower and higher offers would be due to
the Claimant.

It looks like you're mixing tort and contract damages.

Possibly. :-)

The statement
that a higher offer was not negligent - it was a negotiating statement.

The Court accepted that the statement was not a lie, but they also were
not particularly happy that in the event it turned out to be false.


It doesn't matter whether it was true or not. Unless a blatant
misrepresentation of substantive facts was made (that statement would
not qualify as substantive), no compensation should be provided.

In the event, the point remains moot, because the Court concluded that
there was no valid contract based on this earlier exchange.

The acceptance was not an acceptance, given the reference to
previous interim payments, but a counter-offer that was never
accepted.

Agreed.

The ethical point is borderline, but in view of my second point
above, and in view of the negligence of the defendant's solicitor,
I would say that it just about falls on the right side of the
line. But only just about.

How is it even borderline? What should the opposing solicitor have
done? Yes, I suppose it would have been a friendly gesture to have
said, "Well, you know that this offer is £20,000 higher than my last
offer to you, don't you?" But since the solicitor owes a duty to his
own client and not to the opposing solicitor or his client, I don't see
anything at all wrong with simply accepting the offer.


It is borderline because your statement that the solicitor does not owe
a duty to the opposing solicitor is wrong. It is a limited duty, and in
this case, the Court agreed that the solicitor's actions did not fall
the wrong side of the line, but it was clear that there were good
arguments both ways, and it most certainly was not clear cut.
--
Richard Miller

"Alasdair" wrote in message
...
On Thu, 21 Dec 2006 22:35:03 +0000, "The Todal"
wrote:

Maybe this is a bit specialised, but it is still interesting. Consider
this
scenario: a claimant is pursuing a claim for personal injury, worth quite
a
lot of money. Defendant makes a settlement offer. The trial date is very
close.

Claimant's solicitor asks defendant's solicitor: are you willing to
increase
your offer? The answer is no.

Claimant's solicitor sends a fax to defendant's solicitor: we are willing
to
accept your last offer. It is on the basis that any previous interim
payments will not be deducted. Please confirm that terms of settlement are
agreed.

Defendant's solicitor doesn't see that fax. He then rings claimant's
solicitor and puts forward a greatly increased offer, which the claimant's
solicitor immediately accepts. A consent order is agreed and signed.

The defendant's solicitor then sees the fax and seeks to argue that the
claimant's solicitor has behaved disgracefully (in breach of her ethical
duties to him under the Solicitors Practice Rules) and that under the law
of
contract the deal was concluded when the lower offer was accepted by fax.
He
threatens to apply to set aside the consent order and substitute the lower
figure.

What would you expect the outcome to be?



This has the look of an essay question to me but, however...

It's a Todal Christmas quiz.

tim

On Fri, 22 Dec 2006 10:30:06 +0000, The Todal wrote:

I would expect barristers to be far more reluctant to take advantage
of their opponent's mistake.

Errm I would expect barristers to make their living from opponent's
mistakes. eg I see many cases defeated because the CPS/police made a
significant mistake in preparing for the trial.