Part 36 offers; implications & tactics

[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

Edited June 2, 2008 by andrew1

[steven4064]

By 'deal' do you mean 'bluff'?

[andrew1]

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.

[tomterm8]

Its possible, but I don't believe a strike out hearing woulod be granted, because this is legally complex ground. It is, frankly, more appropriate to the high court than any county court. in any case, most mortgages have an indemnity feature so you are pretty much liable for their costs even if you win, unless the judge orders otherwise.

[andrew1]

Its possible, but I don't believe a strike out hearing woulod be granted, because this is legally complex ground. It is, frankly, more appropriate to the high court than any county court. in any case, most mortgages have an indemnity feature so you are pretty much liable for their costs even if you win, unless the judge orders otherwise.

 

So any ideas on what might happen at the court hearing with the Part 36 offer I made to which they never responded too? And also the fact the Agreement is being challenged by me as unenforceable. These people don't respond to a damned thing - absolutely nothing it blinkin frustrating. I've copied everything to the court as I went along with CPR requests etc so the court will be aware of their total intransigence.

 

Any suggestions as to how I might play/plan this here on in? - this wouldn't have come to court if they had responded to my letters and challenge months back?

 

Sarah

[tinkerbell20]

subbing

[tomterm8]

Well, you know Sarah that I feel this case is too complex for me. My instinct would be to write a skeleton argument, and have lots of people read it to see if it makes sence. Make the case a little easier for the judge. At the moment even I am not sure exactly what your argument is... let alone what their argument is.

 

I still think it would be better to come to a deal that is fair to both sides, but, to be honest it seems they are utterly unwilling to even consider it. :shrug:

[andrew1]

Actually Tom, this particular case is not as complex as you might think, not as complex as my other one anyway where I will get Barristers advice. This one is relatively simple ( without going into detail on open forum) a repossession order on 2nd charge loan, a defence of an Unenforceable agreement, total closed door from the finance company in response to letters cpr requests and now a part 36 offer prior to hearing, so I slapped a strike out order in because they refuse to do anything - apart from anything else it is draining living with this day in day out never knowing what is going to happen - a mistake maybe but done now although I can still argue that it has taken 7 months and no-one has replied, I've copied the court with everything, I just wanted it over and done with and I was doing this to draw them out - not even done that, so it's off to a hearing to hear the strike out claim and I guess what will happen with the claim. The finance co have seriously breached every Civil Procedure rule and under those same rules the Judge can decide how to deal with them so as you say I may get saddled with costs, but to be honest I have covered my butt most of the way in letting the court know I have seriously been trying to resolve this without going to court.

 

With my background that people are familiar with on here, of picking the finest of detail out of situations and researching it, I just need to cover every last trick these people might pull - GE are a big company and I know they'll throw their weight behind this as it's a biggie. so planning is what I need to do now. It's not the case detail I have difficulty with, I'll win that no question, its tactics now.

 

Sarah

[photoman]

Andrew1

Just watching. Sort of got the jist of whats going on, and no real advice I can offer just best wishes.

i am sure you will win the case, you are certainly looking into all the detail and considering all options, which is a a good thing to do with such tricksters.

 

regards

 

PM

[andrew1]

Andrew1

Just watching. Sort of got the jist of whats going on, and no real advice I can offer just best wishes.

i am sure you will win the case, you are certainly looking into all the detail and considering all options, which is a a good thing to do with such tricksters.

 

regards

 

PM

 

Thanks Photoman, it's been a while getting to the foundations of this, but it has been worth the ride TBH, I've found out more about the CCA than I ever thought I would and it is now dealing with the 'human element' that's going to produce the fun. I'm up for that, been in negotiating meetings most of my life so intimidation is not something that bothers me...but humans are unpredictable, facts speak for themselves and so long as I have the facts, the game plan, and the tools to do the job, it'll be done. I don't care how big GE are, that doesn't frighten me or how big their solicitors are, dealt with them too - they're just people doing their jobs like the rest of us and the figures are only numbers, wouldn't show up on their balance sheet what I'm talking about, so I have to set the game-plan and stick to it - reminds me of a sales training I had once 'SPIN' they called the technique I made a lot of money using that once upon a time and the tutorials will be coming out again . Any support is good support and I have that in bucket loads on here. Thanks

 

 

Sarah

[sharkie]

Hey Sarah stick with it, anybody who learned "spin selling" will be able to negotiate a deal for themselves.

This is effectively a pitch, you are selling or purchasing the best deal for yourself.

[Smarterchick]

I wonder if someone could update me on something...in this case of 2002 there is reference to a part 36 offer Charles v NTL Group Ltd. [2002] EWCA Civ 2004 (13 December 2002)

 

 

if you look at point 14 (5) in this case it states:

1. CPR 36.8 is headed "Time when a Part 36 offer or a Part 36 payment is made and accepted". It reads:
   
   "(1) A
   [/url]
   part 36 offer
   is made when received by the offeree.
   
   
   (2) A
   Part 36
   payment is made when written notice of the payment into court is served on the offeree.
   
   
   (3) An improvement to a
   Part 36 offer
   will be effective when its details are received by the offeree.
   
   
   (4) An increase in a
   Part 36
   payment will be effective when notice of the increase is served on the offeree.
   
   
   (5) A
   Part 36 offer
   or
   Part 36
   payment is accepted when notice of its acceptance is received by the offeror."
   
   

   
   

Now if you look at CPR 36.8 is says nothing of the sort:

 

Clarification of a Part 36 offer

 

36.8

 

(1) The offeree may, within 7 days of a Part 36 offer being made, request the offeror to clarify the offer.

 

(2) If the offeror does not give the clarification requested under paragraph (1) within 7 days of receiving the request, the offeree may, unless the trial has started, apply for an order that he does so.

(Part 23 contains provisions about making an application to the court)

 

(3) If the court makes an order under paragraph (2), it must specify the date when the Part 36 offer is to be treated as having been made.

-----------------------------------------------------------

It doesn't even go up to (5)

 

Have the cpr rules changed since 2002 or am I missing something? Perhaps someone who knows a little about part36 offers and acceptence could point me in the right direction.

 

That section 36.8 (5) in the case would be useful for my case..

 

 

[photoman]

IMHO,

 

I think what is happening in the case in question is that the judge is not quoting the CPR rules, but instead is interpreting how and when part 36 offers are actually to be practically treated. Particularly with regards to how dates are to be assigned.

 

I should think that it would be reasonable for future cases also to quote the case in question as a precedent for determining such matters in other cases.

 

I am guessing in your case that you got a part 36 offer, accepted it, and now they are trying to say the offer is no longer valid, and/or they won't pay up?

 

I don't know what happens in such circumstances ?

 

ie: are they legally bound to pay up if a part 36 offer made by an offerer has actually been accepted by the offeree (ie you)?

 

IMHO, I should think they are. They have used a legal procedure, and so the onus and obligations under such rules should apply to both sides.

 

Do you have any proof that you accepted the offer? eg a leter from them or a proof of postage ?

 

Anyone else wish to comment ??

 

 

PM

[andrew1]

I've got something similar going on I'll PM you smarterchick...

[Smarterchick]

Thanks you two...

 

This is peculiar in that it didn't involve the payment of monies into a court, (which is another question I wished to ask) this involved reducing the balance of a loan, writing off part of it and it was that which was in the part 36 offer.

We have documentary evidence that I was awaiting the offerors solicitor to come back to me with details which they said they would provide after I accepted the offer on the phone, but it took 3 weeks for them to do that and when they did the details with t&c's compromised their P36 offer ( I covered that angle ). The judge, at the directions hearing said he wanted to establish that the part 36 offer was actually accepted as the offeror now wants to rescind their offer having found certain 'holes' in my original counterclaim. I accepted, no question within the prescribed term, but by phone, not by letter and he's asked for transcripts of that phone call. The solicitors though are baulking saying I didn't accept as I raised issues over the t & c's trying to find anywhichway they can to get out of it now.

I am just looking for case laws which show that a verbal acceptance, supported by emails I have from them telling me to do nothing and the variety of correspondence since implying a deal was done and accepted as being done, will support even more, my assertion that this acceptance is valid...they are trying to get out of it by saying under P36 rules acceptance has to be in writing...I didn't write accepting because I was awaiting confirmation of the figures used in the part36...they are wriggling like a worm, I just want to be the early bird and make sure I catch them whole.

 

As a matter of interest, do ALL part 36 settlements NEED to be paid into court first? If so, then what these people are offering needs to be paid out into the court first and then reapplied to the loan - is that right?

[essex_chris]

Could anybody help a LIP please?

 

We have received a Part 36 offer in a Boundary Dispute. The dispute is over 3 small areas of land, and they would give us 2 out of 3, drop the remainder of the claim for damages etc, but would want us to pay their costs. This totals £30,000 to date.

 

We would be tempted to make a similar offer, to let them have 1 of the 3, drop our counter claim for damages, trespass etc., and they pay our costs which are maybe £5-6000 to date.

 

Should the matter get to court, and the judge decide that we keep the 2 out of 3, they keep the 1 out of 3, how is it decided how to split costs.

 

In this case the land is relatively worthless - perhaps £2000 in total, but they have spent tens of thousands in the last 18months, after ten years of a dispute, whereas we have kept costs to a minimum.

 

If our offer on land matches their offer on land - can there be no tactical advantage regarding costs?

 

We'd happily end the dispute, but we are not prepared to pay their costs - it's their problem that they have spent all that money. Even to agree on the land, but pay our own costs would have cost us thousands of pounds.

 

Any comments regarding the Part 36 issue. Since this is a boundary dispute it's not a disagreement over fixed amounts of money, but a dispute over ownership of parcels of land.

 

When it is judged if the outcome exceeds the part 36 offer - what is taken into consideration exactly?

[caro]

It depends if it's in the small claims court or not. If it is then each pay their own costs.

 

I can't help wondering if £30k may seem excessive for a claim of £2k, but I guess if damages are involved the claim may be for considerably more than the £5k limit for small claims.

 

I can't really offer any other help on this, except that I suspect it would depend on the judge and if the offer seemed reasonable.

[car2403]

Could anybody help a LIP please?

 

We have received a Part 36 offer in a Boundary Dispute. The dispute is over 3 small areas of land, and they would give us 2 out of 3, drop the remainder of the claim for damages etc, but would want us to pay their costs. This totals £30,000 to date.

 

We would be tempted to make a similar offer, to let them have 1 of the 3, drop our counter claim for damages, trespass etc., and they pay our costs which are maybe £5-6000 to date.

 

Should the matter get to court, and the judge decide that we keep the 2 out of 3, they keep the 1 out of 3, how is it decided how to split costs.

 

In this case the land is relatively worthless - perhaps £2000 in total, but they have spent tens of thousands in the last 18months, after ten years of a dispute, whereas we have kept costs to a minimum.

 

If our offer on land matches their offer on land - can there be no tactical advantage regarding costs?

 

We'd happily end the dispute, but we are not prepared to pay their costs - it's their problem that they have spent all that money. Even to agree on the land, but pay our own costs would have cost us thousands of pounds.

 

Any comments regarding the Part 36 issue. Since this is a boundary dispute it's not a disagreement over fixed amounts of money, but a dispute over ownership of parcels of land.

 

When it is judged if the outcome exceeds the part 36 offer - what is taken into consideration exactly?

 

Why are both sides using Part 36 after 10 years? There are clearly areas of agreement, or at least a willingness to negotiate by the sounds of it, so have you tried arbitration? I suspect the Court will order you to consider it at least.

 

As for costs, as Caro has pointed out, the Judge will decide those issues and the veracity of any claims will be based on the validity of the effort put in. With 10 years of history, I'm sure there's something substantial to consider and while that amount seems huge, it's probably worth swerving the possibility of a decision going against you.

 

In either case, it definately sounds like you need some specialist legal advice from square one. Do you have a thread for these issues? Might be worth starting one...

[essex_chris]

The other side did very little in the first 9 years. They delayed for 1 year, then another year, and then 3 years, so 5 years in total. In early 2009 they got a new solicitor, and had a new expert surveyor, and after meetings & correspondence didn't get very far they decided to put up a barbed wire fence. They put it on our land, so we invited them to remove it, or to meet to discuss it, they refused/ignored this, so we removed it. Cue threats of injunctions etc. - in 2010 a claim was taken out, and things have proceeded from there.

 

We have had a session of mediation. That was 4 hours, and we extended it for 3 hours hoping to get somewhere. We needed the extra time as the other side, the Claimants, they refused to meet face to face, and refused to share position statements, or have opening statements shared, so in the end mediation didn't get anywhere.

 

We've now received notice from the court for the case conference, and things are proceeding.

 

Ultimately - if with respect to the land we both propose the same, but they want their £30k costs paid, and in our offer to settle we wnt the same, but our £5k costs paid - how does that work. The point of the tactical move to offer to settle is to do with getting the same or better in court - but if you both ask for the same, with the only difference being regarding costs??

[essex_chris]

Sorry i missed the other reply.

 

It is allocated to the multi-track. It's a relatively complicated boundary dispute. We are standing our ground, but the other side are rather bloody minded. They have very little evidence to support their view, but they have deep pockets. We have several decades of evidence, deeds, witness statements etc.

 

I guess perhaps this is the wrong place for advice regarding Part 36 offers when it comes to Boundary Disputes? Or is the advice the same?

 

The argument could be over ownership of 3 cars - they propose we keep two, and they keep the last. We possibly propose the same, only both sides want their costs to be paid. We would never accept paying their costs. They have been excessive, and have only incurred those costs after ignoring or misunderstanding crucial points of the dispute. Eeg. in mid 2009 they wrote to say that they had spent £4500 to date, and would sell the disputed property for £10,000. At the time certain points were made, in writing, which were in December 2010 made again and they asked why we were raising new points. We have confirmation that they received the relevant information before, so it is utterly puzzling that they claim to know nothing about it. To top this off they also have more than a dozen mistakes in their Particulars of Claim - these will all be brought up at court.

 

We just can't imagine that they could be so naieve as to imagine that these would go unnoticed.

[caro]

If there are errors in the POC these should already have been covered in the defence.