Friday arvo discussions re Monday trial settlement;
An offer or an invitation to make one?
Solicitors’ testimony inconsistent, affidavits erroneous;
"An ounce of merit is worth a pound of demeanour"
Did a Friday afternoon phone discussion between two injury lawyers before a Monday trial to canvass a potential settlement – with one already at home with his two young children – conclude a compromise of the action?
Such a controversy arose in Dr Linda Power’s lawsuit against cleaner Chris Mealey, said to have been one of the persons responsible for a fall which resulted in her injuries.
Mealey’s solicitor, Williams – presumably appointed by his insurer – had put an offer to his counterparts opposite earlier that afternoon to settle Power’s District Court claim for $50k, inclusive of costs.
A conference call then took place in which Power was represented by her solicitors Rick Mitry and Linda Needham.
At some point in that conversation Mitry said “$50k might do it for Dr Power but another $20k would help out me and counsel. Otherwise there is not much left for our fees.”
Solicitor Williams took this to be an offer that he could accept on behalf of his client to – perhaps to everyone’s relief at having their weekend suddenly free – bring the matter to an end.
Unknown to Williams, Mitry had no instructions to make any offer and neither he nor Ms Needham had intended their teleconference invitation to be taken as such.
The next morning Williams emailed Needham saying “we accept your offer of $70k”.
Ms Needham – “an intelligent junior solicitor” – replied given the confusion, in a “studied and noncommittal way” that she had received the email and would “speak to everyone on our side”.
A few hours later that Saturday, she emailed to clarify that their Friday invitation was not a counter offer but rather a suggestion to Williams that he should seek instructions to make an offer at that figure.
Williams considered this “wrong, disingenuous and self-serving” and filed a summons for a declaration that the matter had been settled.
When the matter came before the New South Wales Supreme Court, Justice Michael Pembroke considered Williams the witness with the most “impressive” demeanour which – by convention – would have handed him the decision.
Needham – although not a perfect witness and clearly apprehensive – recorded a note following the teleconference recorded “Will Mealey offer higher than $50k? He will get instructions.”
Williams – whose file note stated “counter offer $70k” – had emailed later in the afternoon to say that because he was unable to get instructions he couldn’t enter into any further negotiations.
Departing from convention – and guided by the principle that “an ounce of intrinsic merit is worth a pound of demeanour” – His Honour went on to note that what matters most is the “proper construction of contemporaneous notes and the probabilities that can be derived from them and other objective facts”.
Recognising that witnesses often bring to the witness box confusion, fallible memories and loose language – “with which some people are genetically or culturally imbued” – he reconciled the deficiencies in the testimony of Mr Mitry and Ms Needham against the emails, file notes and common sense.
He could only arrive one conclusion: that Mr Mitry was doing no more than fishing for a higher offer. The fact that he thought a figure of $70k would be accepted, did not imply any promise to that effect.
This much should have been clear to Williams. He therefore had misconstrued the communications.
Evidence from Williams’ wife that she overheard her husband talking about the $50k and $70k figures in terms of an “offer” was given little weight given she was not necessarily in the same room as her husband and was otherwise occupied with their children.
No $70k offer had been made and the summons bought by Mr Williams on behalf of Mr Mealey had to be dismissed. Unless otherwise resolved, the determination of the appropriate sum by way of damages due to Dr Power will proceed to trial.
Mealey v Power  NSWSC 1678 Pembroke J 10/11/2015