LM-2024-000252 - [2025] EWHC 2704 (Comm)

The TTSA was entered into prematurely, before opposition briefs had been filed.

In respect of this complaint, Mr Miller said that the arguments being deployed by BOC were already well known as a result of the prior negotiations, so that there was no need to await the filing of opposition briefs. In response, Mr Scorey pointed to Mr Miller’s acceptance in cross-examination that what parties say in negotiations is not always what they say when they have to pin their colours to the mast of a pleading or written brief; and he said that, as there was no urgency to conclude a settlement, it was unreasonable to do so without awaiting BOC’s formal response. This submission was supported by the opinion expressed by Mr Schiavone in paragraph 76 of his report.

I do not consider that Equitas’s complaint in this respect has any merit. Very many commercial disputes are settled without any recourse to litigation; the absence of formal pleadings or other documents filed in court is not a reason for thinking that this practice is unreasonable or improvident or that such settlements are premature. When to seek settlement is a matter of judgement in each case. There is, in general, no particular reason to defer settlement on the off chance that the opposing party, having presumably put forward its best case in negotiations, will shoot itself in the foot when it comes to filing its formal submissions. In my judgment, the decision to settle before opposition briefs were filed is clearly not a case of failing to take all proper and businesslike steps.