Consider the following scenario: You act for a plaintiff in a Superior Court matter. On your client’s instructions, you send the opposing counsel an informal email in which you offer to settle the litigation for $100,000. You do not include an expiry date for the offer. The opposing counsel promptly rejects the offer by email and makes an unacceptable counteroffer. A month later, you obtain new evidence that establishes that your client’s claim is worth far more than previously realized. You immediately phone the opposing counsel to advise of the situation and you indicate that your client is no longer willing to settle for $100,000. Ten minutes after you hang up the phone, you receive an email from opposing counsel purporting to accept the old $100,000 offer.

Was the $100,000 offer still available to be accepted notwithstanding that the opposing counsel had rejected the offer in writing and made a counteroffer and notwithstanding that you advised the opposing counsel over the phone that your client was no longer willing to settle for $100,000? Believe it or not, due to the application of Rule 49 of the Rules of Civil Procedure, the answer could possibly be yes.

To learn more, read The Dangers of Rule 49 of the Rules of Civil Procedure by Jordan Nichols, Unit Director & Counsel at LAWPRO