Without Prejudice

[funkyparott]

I have seen several references in this forum stating outright that any communication marked as "without prejudice" are automatically excluded from any court proceedings.

 

I have done a little research, and I have found this is not always the case.

 

A letter can be "without prejudice" even if not marked as such and a letter

can be marked "without prejudice" and not have that protection.

 

In other words, a letter marked as such, must be a 'genuine attempt at settlement'. If it is not, then regardless of how it is marked, it could still be entered as evidence.

 

I'm not recommending anyone tries producing a letter marked as such - you would need to be absoultely certain about what you were doing! You could end up having the judge having to resign themselves from the case and maybe getting costs awarded against you.

 

I see also, that after judgment, a letter marked as 'Without Prejudice' can be admitted as evidence for the purpose of arguing costs.

 

From what I have read, it would appear you cannot just hide behind a letter marked as such. It is critical that the content is appropriate.

 

I'd be interested to hear any other persons thoughts on this.

 

FP

[pmhread]

Thats my understanding of it. Fighting a case at the moment with someone who tries to hide libellous accusations behind those two little words. Have presented some of these letters that weren't a genuine attempt at a settlement to the court.

 

Will let you know how I get on (court date not until October though )

[funkyparott]

Love to hear how that case goes.

 

Certainly, my limited research on the matter indicates that admissions or liablous stuff cannot be hidden under such a heading. Good luck.

 

 

FP

[lookinforinfo]

Could you show in Court a "without prejudice" letter from a bank, or solicitor acting for the bank, that has been sent to a CAG member for example, where the case

had no connection with the member it was addressed to [obviously would have

their permission to use].

The letter may be to help prove a point in the second case especially if the same

solicitors or bank were involved in both cases..

[JonCris]

What would happen if you told the court about a settlement letter sent to you marked without prejudice - (a 50% offer from Abbey following their defence being filed)

 

Would it jepordise your claim in any way ?

 

Yes! You cannot disclose any offer of settlement (Part 36 offer) & it will expire after 21 days unless otherwise stated or agreed

[JonCris]

Thanks Joncris

 

How would it affect your claim ? any ideas ?

 

I think the courts give individual litigants in small claims a certain amount of leeway for errors like this, and would just disregard the information.

 

They would NOT. Disclosing the amount of the offer prior to hearing drives a cart & horses through the process & would be grounds to have any judgment dismissed.

 

The judge would have little choice but to remove himself & a further hearing under another judge be arranged. Although not normaly granted in small claims the defendent could even apply for a wasted costs order against the claimant.

[Cpt Black]

Excuse my naivity(?) here, but why would an previous offer of a settlement prejudice a judge?

[JonCris]

Excuse my naivity(?) here, but why would an previous offer of a settlement prejudice a judge?

 

Because it does & that's why we don't do it.

 

Please think about it

[JonCris]

I have seen several references in this forum stating outright that any communication marked as "without prejudice" are automatically excluded from any court proceedings.

 

I have done a little research, and I have found this is not always the case.

 

A letter can be "without prejudice" even if not marked as such and a letter

can be marked "without prejudice" and not have that protection.

 

In other words, a letter marked as such, must be a 'genuine attempt at settlement'. If it is not, then regardless of how it is marked, it could still be entered as evidence.

 

I'm not recommending anyone tries producing a letter marked as such - you would need to be absoultely certain about what you were doing! You could end up having the judge having to resign themselves from the case and maybe getting costs awarded against you.

 

I see also, that after judgment, a letter marked as 'Without Prejudice' can be admitted as evidence for the purpose of arguing costs.

 

From what I have read, it would appear you cannot just hide behind a letter marked as such. It is critical that the content is appropriate.

 

I'd be interested to hear any other persons thoughts on this.

 

FP

 

A "without prejudice" offer will be disclosed by the costs paying party if the offer was reasonable & compared with the courts award then costs for subsequent litigation might be difficult to obtain. However as we are all keeping our claims below £5,000 costs don't enter into it

[Its WAR]

Of course, if you want your correspondence used as evidence in court, do not write without prejudice on the letter. In fact, you could write the first sentance like " Further to your letter dated..... please find my open letter in reply.

 

This would show the bank you intend your letter to be read in court. The letter must cast you in a good light.

[Cpt Black]

Because it does & that's why we don't do it.

 

Please think about it

 

Ok, so a judge might think that a settlement offer might be an admission of liability - as oppossed to it might be cheaper for the defendant to settle than proceed in court regardless of the outcome.

 

However, if the defendant offers a settlement with "without prejudice" at the top, then in the letter states something thats shows the defendant in a bad light or says something threatening (I.e. affecting the claiments credit rating), surely it would be better for the judge to see the tactics of the defendant.

 

 

Why is it, then, that the judge can't see an offer of settlement as the best route for the defendant, not an admission of liability and can therefore take into account anything hiding within the heading "without prejudice"

[JonCris]

Ok, so a judge might think that a settlement offer might be an admission of liability - as oppossed to it might be cheaper for the defendant to settle than proceed in court regardless of the outcome.

 

However, if the defendant offers a settlement with "without prejudice" at the top, then in the letter states something thats shows the defendant in a bad light or says something threatening (I.e. affecting the claiments credit rating), surely it would be better for the judge to see the tactics of the defendant.

 

 

Why is it, then, that the judge can't see an offer of settlement as the best route for the defendant, not an admission of liability and can therefore take into account anything hiding within the heading "without prejudice"

 

It's a long standing legal precedent that a "without prejudice" offer cannot be disclosed to the court until after a determination.

 

As for the threats you refer to you would respond with YOUR letter & whilst making no reference to their offer you could refer to THEIR threats as being unacceptable etc just don't mark your reply as "without prejiduce" Anyway such threats will not affect the outcome unless your claiming additional damages over & above the bank charges which as it's not a defamation or injury claim but a money claim you are not.

 

We all know these threats are being made but they are a matter for another day in another court & trying to expose their tactics in your money claim might do more harm than good. As you claiming a fixed sum it certainly won't have any affect on the sum awarded

[Cpt Black]

trying to expose their tactics in your money claim might do more harm than good.

 

Not quite with you on this one. Suppose you reply to their offer stating their threats are unacceptable and the judge asks to see the original settlement offer, could he force you to accept that (at less than the claim is for?)

[meagain]

Can I disclose the contents of a settlement offer and/or my reply under these circumstances:

 

Offer issued 13th June.

Another penalty charge issued 14th June, discovered only *after* reply to offer.

Argument being that if they're offering to refund today then take it back again tomorrow, it's hardly negotiating in good faith.

 

If not, which pieces of information might I need to excise from the letter to make them admissible, as they form a key point of my claim.

[JonCris]

Can I disclose the contents of a settlement offer and/or my reply under these circumstances:

 

Offer issued 13th June.

Another penalty charge issued 14th June, discovered only *after* reply to offer.

Argument being that if they're offering to refund today then take it back again tomorrow, it's hardly negotiating in good faith.

 

If not, which pieces of information might I need to excise from the letter to make them admissible, as they form a key point of my claim.

 

It depends on what basis the original offer was made. You may have to start the whole process again

[JonCris]

Not quite with you on this one. Suppose you reply to their offer stating their threats are unacceptable and the judge asks to see the original settlement offer, could he force you to accept that (at less than the claim is for?)

 

He would rely on your accusations unless the defendent claimed not to have made them.

 

Anyway we aren't discussing trying to change the rules. You cannot disclose "without prejiduce" except under very strict criteria

[meagain]

It depends on what basis the original offer was made. You may have to start the whole process again

 

If you clarify this slightly, I'll see if I can provide the info you need to give a reasonable answer.

[JonCris]

All offers are considered to be part 36 offers & can be argued as to costs by the defendant even if they lose.

 

I think the argument in your particular case is one in which the defendants right hand doesn't know what the left hand is doing. I suggest you should write to them & tell them that you have been charged AGAIN & unless that is refunded & these charges be stopped you will consider their offer to be null & void. Failing that you will seek the courts permission to disclose their disingenious offer amend your claim accordingly.

[brandedcentaur]

I do hope I am not "thread jumpng", but I think my case involves "without prejudice" & might be of use to others.

 

I have issued Small Claims against first direct. Since then I have had a letter from their solicitor headed "without prejudice" asking for a breakdown of charges I am claiming from their client.

 

I have already sent the Excel spreadsheet detailing all the unlawful fees etc when I issued the court papers, and anyway, the bank has the charges on its computers.

 

Would I be safe in ignoring this letter (which I believe to be yet another delaying tactic) on the grounds that it cannot be produced in court?

[JonCris]

I do hope I am not "thread jumpng", but I think my case involves "without prejudice" & might be of use to others.

 

I have issued Small Claims against first direct. Since then I have had a letter from their solicitor headed "without prejudice" asking for a breakdown of charges I am claiming from their client.

 

I have already sent the Excel spreadsheet detailing all the unlawful fees etc when I issued the court papers, and anyway, the bank has the charges on its computers.

 

Would I be safe in ignoring this letter (which I believe to be yet another delaying tactic) on the grounds that it cannot be produced in court?

 

1st do NOT ignore any communication from the otherside. It could cost you dearly in court.

 

2nd be aware that quite often staff in solicitors office's will put "without prejudice" on sometimes the most unsuitable correspondence. Usually unqualified they do it because it makes them feel they know what they are doing & even if they don't they hope you will think they do. Clearly a request for information doesn't need to be qualified as it is not an admission of liability. It's only a request for information

 

I should send them another copy as they request whilst pointing out that as you have previously supplied that information you will be sticking to YOUR timetable

[brandedcentaur]

Thank you for the speedy reply JonCris. My point was in reference to earlier posts in this thread - if they cannot produce their letter in court (due to it being marked as "without prejudice") how can it affect my case if I ignore their silly letter with the contempt I feel it deserves?

[JonCris]

Because if you ignore any request for information from the other party it can backfire on you in the eyes of the court & it doens't matter whether its "without prejudice" or not.

 

Defendant To the judge:

"Sir how can we be expected to reach an agreement with the claimant if he refuses to provide us with the evidence which is the basis of his claim".

 

Whatever your opinion of the defendant don't get too cocky & end up shooting yourself in the foot

[brandedcentaur]

Thank you again for the input - but I still do not understand how a judge is going to look kindly upon a request for information which his court has sent to the defendant already. It is a futile exercise in time wasting & the court is bound to see it that way.

 

Having said that, to be on the safe side, I will provide copies of the information I have ALREADY sent them & add the cost of doing so to my bill (I am charging £3 per letter). I shall also be making a remark as to the fact that this information has already been supplied.

[Glenn UK]

I think the point is you are supposed to be working in good faith, that is you are not puting any impediment in the way of reaching a negotiated settlement.

 

Hence you send the stuff and point out its already been lodged/provided histrorically.

 

Its worth noting that law isnt real life, its a 'game', if you dont play by the rules you may suffer a penalty if you get caught.

 

The other side have people who play the 'game' for a living, doesnt mean they're perfect but if they can expose any weakness in your case by exploiting your ignorance they will do so, i would if I was them.

 

JMHO

 

Glenn

[JonCris]

Correct Glen. We all think the money lenders are the pits but the object of the exercise here is to win & win & win again.

 

I suspect most of us want to get "one over" the banks lawyers but it's a dangerous game to play. So my advice is lets stick to a system that we know works & try & be seen by the court as the sympathetic novice