Reaching an agreement should be a two-man job

In an ideal world, all practising solicitors would devote at least 30 minutes of each working day to scouring the legal press and digesting daily caselaw summaries. Back in the real world however, I imagine that most of us only manage a glance over the main headlines with forays into articles and cases which sound particularly pertinent to our area of law.

By way of example, a couple of months ago one of my colleagues circulated information relating to the recently decided cases of AB and another v CD Ltd and Newbury v Sun Microsystems. The moral of both is that parties should take care when negotiating the settlement of a claim to include all of the terms which they require during the negotiation process, rather than try to obtain the other side's agreement to something once an offer has already been accepted, and the deal done.

This may appear blindingly obvious at first glance, but I find on a regular basis that solicitors only raise issues such as confidentiality after the financial element of a settlement has been agreed.

False hope

I had a recent personal experience of this in the case which I confidently stated had been settled in this column last month. Our client was the Part 20 defendant, and thus not party to the underlying claim. The settlement negotiations were therefore on two tiers, with the defendant to the main claim, and Part 20 claimant, taking part in both. A rather large hiccup arose because a time limit on an outstanding head of claim was tabled during negotiations in '¨the Part 20 claim but not, according to the claimant, in '¨the underlying claim.

The only solicitors who were party to all negotiations acted for the defendant. Throughout the case, their approach was to argue that any liability found to rest with their client should be passed onto our client via the Part 20 claim. They repeatedly used the phrase "piggy in the middle", which I found more irritating with each utterance. '¨We eventually managed to reach agreement, almost literally at the court door and only after applications for a declaration of settlement had been threatened.

Evidential issues

The other case which I mentioned last month was about to start a two and half day trial also became a saga in its own right. It became extended by increments until it ended up as a four and a half day trial. It resembled an LPC exam question in terms of the number of evidential issues which arose on a daily basis during the trial, with challenges to witness statements and witnesses serving additional statements to address errors in their testimony. To add insult to injury, following the uncertainty surrounding the timing of the trial itself there was insufficient time for the judge to consider and deliver judgment, meaning that the parties continue to wait.

Another exciting event this month resulted when I cashed in a voucher which I won in a charity raffle at work. It was for a luxury facial treatment with an apparent face value (ha ha) of £250 at a city centre spa. When booking my prize I asked whether I would need to take half a day's holiday, naively assuming that the treatment may last a few hours, but I was told that it would only take one hour. In fact, by the time I had completed the new client form, the treatment itself was just 50 minutes long. I felt afterwards as though it had made a difference, but with that price tag one '¨would expect so. I was almost '¨expecting to emerge looking half my age.

I calculate that the therapist was charged out at an hourly '¨rate of £300, which far outstrips that paid by our insurer '¨clients for the partners here. It seems that we may all be in the wrong business. SJ