Part 36 offers; implications & tactics

[photoman]

Just bumping this up my list of subs.

[andrew1]

I am about to make a Part 36 offer but am a little unsure of certain facts..

Case:I'll try and keep this short:
I had a order presented to me on a 2nd charge loan back in November 2007 - the loan is for £60,000, I ran up £3900 in arrears but cleared those end Oct, but owed £790 on Nov 1st and the finance company continued with repo order. I counter claimed their repo order by stating that the agreement was unenforceable (I won't bore you with why just now, but it is) and under the CCA I can actually reclaim all I have paid (c £15k)

Now, the finance company will not respond to all my requests to answer my counterclaim. I've written eleven times, requested responses using CPR 18 requests, I have been totally ignored. (okay, I can handle that) case was due for hearing for directions in March, but when we arrived the judge had been too busy and all cases adjourned for the day and we all went home none the wiser.
I received a letter from court advising me the case was adjourned in general with the right to restore if presented by Mar 09 - 1 yr on...I heard nothing from anyone else. I've stopped paying the finance company until they respond.

I have now had a letter from the finance company which is factually incorrect about what happened on the March hearing date and stating they are again going to apply for relisting..totally ignoring all my requests for a response to my counterclaim yet again. The Judge will trounce them for this as I copy the court with everything I do. I now want to 'call' them - they obviously have no answers to my claim which sites numerous parts of the cca and are just hoping to intimidate me by taking renewed action. Fine, I'm up for it as I am confident I am going to win.. however, I'd like to make them sweat and drop them a part 36 offer.: Write off the loan, withdraw their 2nd charge, repay my payments of £15k and clear any bad credit reference history.

My question : in the cpr 36 information it states claimant, defendant Offeror and offeree. Can someone just put me clear on a few points...I am the defendant in the repossession claim and I owe monies. I am making the offer to settle, but I am asking the Claimant to pay me.
Section 36.10 states that the 'Defendant will have to pay the Claimants costs up to the date on which notice of acceptance was served on the Offeror ..

I can't quite get my head around this as my case is back to front, I am the defendant, but asking the claimant to pay me in my counterclaim...

Can anyone tell me what the best way of handling a situation like this would be and how would I approach it?

Cheers...

[tomterm8]

The counter claim is a seperate legal claim than THEIR claim... so, you just put in your details as the claimant.

To be honest, I don't think part 36 offers are really worth the effort usally unless there is some doubt as to how much you would be awarded by the court... if the claim is for a fixed amount, a without prejudice save as to costs offer is adequate.

[steven4064]

I think Tom is right - Part 36 is usually used by the big boys to bully and frighten the little guys. I'm not sure it so effective the other way round

[andrew1]

Originally Posted by tomterm8

The counter claim is a seperate legal claim than THEIR claim... so, you just put in your details as the claimant.

To be honest, I don't think part 36 offers are really worth the effort usally unless there is some doubt as to how much you would be awarded by the court... if the claim is for a fixed amount, a without prejudice save as to costs offer is adequate.

Thanks tom, so are you saying I just make an offer to the finance company asking them to repay like I would in a p36? Would that have the same effect though as a P36 in making them respond, to date they just haven't bothered once responding. I'm trying to draw them out. I could wait until the re listing and get directions, but as you say, this is a separate claim ( which I hadn't quite realised as such). Would the Judge issue Directions based on the amount of their claim against me which is for the £60 odd k or would it be on my counterclaim amount of writing off the debt and repaying the £15k . I am trying not to get lumbered with costs even if I win a Part 36..

Sorry Steven I was typing up when you posted..

I'm really looking for the most effective way of drawing them out into the open before it goes to hearing. I am challenging the validity of their Agreement, but they just won't respond what so ever.. I thought the Part 36 would do it.

[tomterm8]

For a part 36 offer to be meaningful, you have to claim LESS than you would be awarded if the case comes to court. The cost implications happen when you are awarded MORE or the SAME as your part 36 offer.

You don't need to write it on a form, anyway, you just need to state in your offer letter "this offer has the effect of a part 36 offer".

If they've sent a defence to the counter claim, or response, then that's the best you are likely to get... otherwise, there is no way you can really force them to respond outside of the court room.

[andrew1]

Okay Tom, I'm getting there thank you.

Now can you just put this in perspective then for me.

There's a claim for £60k against me.

Under my Counterclaim the whole agreement would be unenforceable and I can claim back £15k I have already paid against the Agreement ( don't worry about the nitty's of it just this part because I'm trying to put myself in a negotiating position)

Now, if the re-listing takes place and I go to a hearing it will be as a result of the finance co asking for their £60+k, the Judge will listen to both sides and state that as I am counterclaiming it will have to be allocated a track.

The Finance Company to date (since Nov) have not filed any kind of defence or reply and defence to my Counterclaim so the Judge will no doubt place a stay on proceedings and request the finance company come up with one.

To make a P36 offer I am effectively asking them to clear the Agreement amount of £60k, repay the £15k, clean-up my Credit File and remove the charge on my property which they had as security.

Now where does that fit in with offering/Claiming LESS?

Whatever I am asking for will be less than their claim, because with all their charges their actual figure stands at some £72k but where does the original £60k slide into the equation of a 'reduced offer...?

What I am asking here I think is ' can you or someone tell me what might be the best way to present this'?

I've done all the counterclaim like clockwork, it really is the mustard.. but this bit is just getting me confused and I want an extremely clear head when I put this together and I need a little guidance as I'm slightly unfamiliar with the presentation and structure of this 'deal' I'm offering.

Does that make sense?

Thanks

[steven4064]

By 'deal' do you mean 'bluff'?

[andrew1]

Originally Posted by steven4064

By 'deal' do you mean 'bluff'?

erm? Not exactly a bluff Stephen, this is my house I'm talking about! - no, the finance company could have taken repo action and normally would long before now if they had an answer to my case. I'm effectively trying to goad them into answering my counterclaim by making a Part 36 offer which means they HAVE to respond within 21 days. I haven't ever used anything like this and unfortunately I'm not using a solicitor. The Finance Company ignore everything I write to them, no matter how official I make it - part 18 requests whatever. They just seem reluctant to respond, they write letters which are factually meaningless and have lied about receiving letters I know they have received. Now they have written in response to one of my letters, totally ignoring the contents of mine and then bleating a load of lies followed by ' we are applying for re-listing'.

If we go into a hearing and they use the Barrister they sent on the abortive hearing day, then he, being a self respecting man with a reputation is hardly going to want to represent them again I can't imagine, if he does attend the Judge will not take too kindly to the finance company ignoring 11 letters, faxes and emails from me trying to negotiate a settlement.

So, having been given this one year by the Judge when she adjourned all cases for them to re apply or be struck out they did nothing. It was when I wrote saying why did they ask for a stay and please respond to my counterclaim that they just wrote back stating they were applying to the court for a relisting.

I want to get in with an offer to settle which will put pressure on them to either take the rap in court and drag things out even longer or accept my offer.. You mentioned in an earlier post that this P36 is usually used by the big guys to intimidate the little guys, well they don't know how little or big I am and I feel like using it on them in a way they are using their might on poor innocent people who have got these unenforceable agreements too but losing their homes. I just want it wrapped up and I need to posture myself with this offer to put myself in the best possible position and them in the worst possible position.

[steven4064]

My daughter works for a solicitors specialising in personal accident claims. This is where Part 36 comes into its own. The defendant makes a Part 36 offer which is pitched lower than the claim but not too much. The claimant then has to gamble - go for the full claim and risk massive costs if awarded something lower than than the Part 36 offer or take the money. It just takes the game of chicken to a higher (and more finely judged) level.

[tomterm8]

You could issue a P36 offer which simply states that both parties shall cease legal action against the other, stop processing data and bear their own costs. If they refuse, and apply for relisting, and lose then they would have huge cost implications.

That's the only way I can see a p36 working for you.

[andrew1]

Not so sure I have done this right on reflection, but done now and must plan for the hearing. My idea was, defend the repossession with a counterclaim stating their agreement unenforceable. Did that, they didn't respond. As stated, I wrote loads of letters, CPR requests etc, they still didn't respond until the last hearing which was abandoned as the Judge was too busy before getting into the courtroom and I produced all the paperwork again. To draw them out as they were asking for relisting I stuck in an Application to strike out and accompanied it with a Part 36 offer which requested loan written off plus £10k of the £15k I'd paid in interest since taking the loan out.

Maybe I should have left it and done what Tom said although he posted that after the event -I have to deal with what has happened to the best of my knowledge.

Now, re-reading what Tomterm and others have written and learning about the strike out, IF we go into court and the Judge agrees to strike out the claim for breaches in CPR3 I used then it could be the loan company could leave it alone and come back later for repo again is there not? what I have to consider is if, as Tom states I am awarded in court the same or more than what my Part36 asks for I will be saddled with costs - which is not what I wanted of course, plus I need to get the loan company to remove the 2nd charge which I can only achieve if and when I can prove my agreement unenforceable. Is that likely to happen at a strike out application hearing?

I need to plan and prepare myself for the hearing so anyone any ideas I'd be grateful.