How Rude-olf: Christmas Negotiations Gone Wrong

Case Study: Matthew John Guy v Von Bibra Motors Gold Coast Pty Ltd and WorkCover Queensland

The lure of the December break, Christmas lunches, gifts arriving to your desk and an overwhelming amount of sugar can make negotiating at Christmas risky business. Of course I would never suggest we don’t negotiate at Christmas as it is often the time when each party is highly motivated to have one less file the following year. But proceed with caution or you won’t be jingling all the way.

I suspect that some of the above factors were behind the outcome in Guy v Von Bibra Motors Gold Coast & WorkCover Queensland. Victorian readers will be familiar with the strict statutory timelines that apply to WorkCover common law proceedings and this case suggests a very similar scheme where a failure to issue proceedings within a certain time has a sudden death outcome.

Against the backdrop of the end of year closure and a deadline to issue proceedings around the corner, in this case, two lawyers attempted to resolve an industrial accident common law claim. In a last-ditch effort, the Plaintiff lawyer offered, on 16 December 2022, to settle the case for $200,000.00 plus Regulation costs.

Six days later, on 22 December 2022, perilously close to the Christmas closure period, the Defendant lawyer agrees – in part. The substantive offer is accepted but is contingent upon costs being agreed.

Further email negotiation ensues regarding costs and ultimately the Defendant puts their position and sends a Release. Silence ensues – no response from the Plaintiff lawyer. I imagine the office closing, a piece of tinsel falls from the ceiling and a plate of hummus and crackers expires in the dark kitchen.

On 3 January 2023, the Defendant lawyer advises the Plaintiff lawyer that the case is not settled. Further, the Plaintiff did not issue common law proceedings in time. And they withdraw their offer.

I pause here to ponder the psychology of this move at 7.21am on what I imagine was the first day after the Christmas break. It was clearly in the Defendant’s best interests to not interrupt the Plaintiff lawyer making the mistake of not finalising the settlement. Napoleon said “never interfere with your enemy when they are making a mistake.” But this a-ha litigation sits uncomfortably with me. I can only imagine the Plaintiff lawyer reading their emails at 7.21am, dropping their coffee, and feeling sick to their stomach. I digress – this case does not stand for what can be achieved by having pro-active kindness in litigation.

Six days passes before the Plaintiff lawyer responds at which time they purport to accept the retracted offer. The Court heard the Defendant’s application to have the proceeding struck out and considered that the offer and response on 22 December 2022 did not constitute an agreement in circumstances where the costs remained unresolved. An argument based on issue estoppel was dismissed. No doubt what has followed was a claim against the Plaintiff firm’s professional indemnity insurer.

When we have discussed this case at our firm and we decided the case is a good reminder of the following:

1. A deal is not done until it is clearly agreed and there is certainty around the terms
2. There are (sometimes) no friends in litigation (I think for the most part this is not true in Victoria but we can never rely on kindness or collegiality to forgive missing a limitations date)
3. Don’t leave offers unresponded to and….go on leave
4. Things go haywire at Christmas – we are busy, tired and hyped up on Haigh’s chocolates
5. Never let a date expire without being 100% sure that the case is settled or the client is not proceeding
6. Be careful of Christmas negotiations!

Have a lovely summer break – and I wish you all happy and certain settlements with Deeds of Release signed and saved before you depart on 22 December 2023.