Palace 1 - Dowie 1, they go into extra time

CRYSTAL PALACE FC (2000) LTD v IAIN DOWIE (2008)

[2008] EWHC 240 (QB)

QBD (Wyn Williams J) 18/2/2008

CIVIL PROCEDURE

ACCEPTANCE : OFFERS : SETTLEMENT : ACCEPTANCE OF ALL PARTS OF AN OFFER : EXISTENCE OF OFFER CAPABLE OF ACCEPTANCE

The purported acceptance of an offer to settle proceedings by payment of damages and costs had not mentioned a confidentiality clause that had been part of the offer, with the consequence that no binding settlement had been reached.

The claimant football club (P) claimed that its action against the defendant, its former manager (D), had been settled by acceptance of an offer. P had issued proceedings against D in connection with a compromise agreement allowing D to be released from his employment contract with P. On a trial of preliminary issues it had been determined that P had entered into the compromise agreement on the basis of fraudulent representations made by D, but that the agreement should not be rescinded. D applied for permission to appeal. In the meantime D instructed a new solicitor to attempt to negotiate a settlement of the proceedings. During several telephone conversations solicitors for P and D discussed the terms on which their respective clients would be prepared to settle the proceedings. Offers and counter-offers were made but no agreement was reached. D was then granted leave to appeal against the preliminary determinations. P immediately purported to accept an alleged offer to settle on payment by D of damages plus costs. D denied that there had been an offer capable of acceptance. P argued that during the negotiations D had made an unconditional offer to pay damages by the words "if it were worth his while to salvage something at £350,000 he would", and that he had also agreed to pay P's costs. D argued that the words were not sufficiently precise or certain to constitute an offer, that there had been no discussion about costs, and that it had been made clear throughout the negotiations that D would only compromise the proceedings if there was a confidentiality clause. D argued that in those circumstances no binding agreement could have come into force until a court order was made disposing of the proceedings.

HELD: (1) The court's task was to look at the whole of the negotiations and decide whether upon the true interpretation of what occurred the parties had reached agreement upon the same terms. The words "if it were worth his while to salvage something at £350,000 he would", when considered together with the rest of the conversation in which they were spoken, had amounted to the making of an offer that was intended to be binding if accepted. That conclusion was confirmed by the history of the negotiations that preceded that discussion. It was clear that before leave to appeal had been granted D had been anxious to settle the proceedings. (2) It was unlikely that the negotiations had proceeded without any discussion of costs. It was clear that D's solicitor did not believe that P would accept only a sum in respect of damages to settle the litigation. On the evidence, the negotiations had proceeded on the basis that D would pay P's costs that he had previously been ordered to pay. (3) Attendance notes made by D's solicitor of telephone conversations strongly suggested that he had made it clear that no settlement could be achieved in the absence of some form of confidentiality clause. As P's purported acceptance did not mention a confidentiality clause, no binding compromise had been reached. In any event, the terms as to the confidentiality clause were not sufficiently precise so as to crystallise as part of an offer, so no offer capable of acceptance had been made.

Judgment for defendant

Posted By: Old Git, Feb 27, 09:28:33