Safe and sound settlement

By Gwendoline Davies

Dealing with disputes and litigation can be fraught with difficulty and risk. Litigation lawyers are therefore well practised in approaching their clients’ cases with the care, skill and competence they deserve. As several recent cases have demonstrated, it is equally important to ensure that solicitors do not take their eye off the ball at the conclusion of a case when the parties finally reach a compromise or resolution. Creating a binding, solid settlement can itself be a complex matter and it can be a disastrous outcome for all involved if a supposed settlement turns out to be flawed and not the end of the road after all. Several recent cases highlight important points to be aware of when you are negotiating and finalising settlement agreements.

The case of Frost v Wake Smith and Tofields Solicitors concerned a long-running and acrimonious dispute between two brothers, Mr David Frost (the appellant) and Mr Ron Frost (RF), over the division of their shared property and business interests. The appellant had instructed Wake Smith and Tofields Solicitors (WST) to act on his behalf. A mediation took place in November 2003, during which a form of agreement was reached between the parties. The solicitor at WST drafted an agreement that laid out the basis of a resolution of many of the issues, which was signed by both parties. The appellant believed that an agreement had been reached from which RF could not resile. Following the mediation, however, it became clear that RF did not regard himself as bound by the agreement. WST received advice from counsel that the agreement was unenforceable because of its vagueness and the fact that it dealt with the interests of third parties…

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