In (1) Thames Trains Ltd (2) Railtrack Plc (In Administration) v Michael Adams – Lawtel 3.1.07 an interesting situation arose where the Defendant’s solicitor spoke on the phone to the Claimant’s solicitor rejecting an offer of settlement in the sum of $9.3 million and indicating that the Defendant needed $10 million to settle, which was rebuffed. When she put the phone down, the Defendant’s solicitor sent a fax (at 10.41) to the Claimant’s solicitor accepting the offer of $9.3m. At 11.40 the Claimant’s solicitor called back increasing the offer to $9.8 million. The Defendant’s solicitor, not knowing whether her fax had not been sent or just not received, did not mention it, but accepted the offer of $9.8 million and sent a further fax saying the previous one had been sent in error.

This led to the question of whether the Defendant’s solicitor was under a duty to mention an offer of acceptance of money in court when the opponent began negotiating a higher offer in ignorance of the earlier offer of acceptance.

The issues to be considered were estoppel, mistake and unconscionable conduct by the solicitor, arising out of her failure to inform her opponent of the 10.41 fax.

The Queen’s Bench court held that a solicitor's overriding duty is to his client. The Solicitors Practice Rules 1990, which are statutory, impose a duty of good faith on the solicitor so that he has to act towards other solicitors with frankness and good faith consistent with his overriding duty to the client. CPR r.1.3 requires a party, and hence the solicitor representing it, to help the court to further the overriding objective. A solicitor therefore has to deal with cases justly, and as an officer of the court owes a duty to act honestly and with integrity in the proper administration of justice. When the solicitor's duty to the court comes into conflict with his duty to act in his client's best interests, the public interest in the administration of justice has to take precedence. There is however no general duty upon one party to point out the mistakes of another. Each situation has to be judged in the light of its particular circumstances. As the 10.41 fax contained an offer of acceptance and not an acceptance, the Defendant’s solicitor was entitled to withdraw the offer at any time before acceptance. In such circumstances her conduct could not be described as unconscionable, unfair or taking advantage of her opponent. It followed that if there was no duty to inform the opposing solicitor of the 10.41 fax during the telephone conversation, there was no duty to inform him of the offer later when she discovered that the fax had been sent. As there was no duty to speak, there could be no estoppel or mistake.