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Making Payments and Offers Without Prejudice - Help with a Form of Words


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I've asked about this before and seen several other people asking the same question, but haven't found an answer. I'm hoping a thread in this section might help me and others to find a solution.

 

THE PROBLEM

 

Despite creditors not having CCAs, I do not deny all of my debts and want to make progress with settling them rather than writing letters and avoiding phone calls until 'fast falls the eventide'. For that reason I want a form of words that allows me to make F&F offers and keep making token payments without those offers or payments constituting an acknowledgement of whatever amount they creditor decides to purse. I realise that this may be a tall order, but even something that would provide an argument would be better than nothing.

 

Here is what I plan I to do in each case. Any criticisms or suggestions for improvement would be helpful:

 

For Token or Monthly Payments

 

Send a remittance advice stating: "Please find enclosed an ex gratia payment of £X towards the above account." Also write on the back of the cheque "ex gratia payment towards account number: XXXX".

 

For Full and Final Settlement Offers

 

In a letter with the usual 'WITHOUT PREJUDICE' heading: "While, your company has not produced a legally enforceable agreement in respect of the above account and I do not admit liability for the amount of £X,XXX,XXX, nonetheless I wish to offer an amount of £XX as an ex gratia payment in full and final settlement of the above account on the understanding that neither you nor any associated company will continue to purse this account and that you will remove any reference to this account from all credit reference agencies."

 

Is this hopelessly naive and simplistic?

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In a letter with the usual 'WITHOUT PREJUDICE' heading: "While, your company has not produced a legally enforceable agreement in respect of the above account and I do not admit liability for the amount of £X,XXX,XXX, nonetheless I wish to offer an amount of £XX as an ex gratia payment in full and final settlement of the above account on the understanding that neither you nor any associated company will continue to purse this account and that you will remove any reference to this account from all credit reference agencies."

 

 

I would add in something along the lines of.............this offer is made without admission of liability

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Thanks for the instant response. I was thinking that 'ex gratia' covered that but I'll happily add anything for the avoidance of doubt.

 

Have you an opinion on the token/monthly payments issue?

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Without Prejudice - the phrase is used in negoitiation - essentially it covers an offer only. It acts to create a legal priviledge that only the writer can waive.

 

In full and final settlement cases - if you are simply writing to a creditor making an offer of payment providing its' marked without prejudice you don't need anything else. However the moment that the offer is accepted the protection afforded by without prejududice ceases and the letter becomes admissible in proceedings as evidence.

 

That therefore means that technically if you make a without prejudice offer which is accepted and you subsequently discover that the agreement is not valid you may have a bit of a problem, not insurmountable, but a problem which is why you should, in this situation, do what pt suggests and make clear that the offer is without any admission of liability.

 

The phrase ex gratia really doesn't mean a lot - if I were you I'd take it out.

 

In terms of token offers - the position is a bit more complicated - again ex gratia doesn't help - perhaps the approach to adopt is to say that on a purely without prejudice and without any admission of liability I am prepared to offer to pay £x per month/week on the basis that any enforcement/proceedings are discontinued. Providing that you have made the offer in writing and they have accepted it in writing you don't need to write anything extra on the cheques - you have at that point an agreement the evidence of which is admissible

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Sutherlands, Sorry for hijacking your thread however i think that there are quite a few folks that are looking to do F/F with DCA , any chance of some of you champs out there getting a couple of template letters set up , including one for folks trying do a F/F but also trying to get DCA to remove the DEFAULT/CCJ which came with the debt. Just a idea

 

Manc1

MANC 1

 

 

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Manc1 - F/F settlements and cancellation of CCJ's are a bit complex - you'd need to agree it by w/o prejudice correspondence and then draw up, sign and file (and possibly pay a fee) a consent order to set aside the CCJ - I'll have a think...

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Manchester1 the hijack is welcome. I've seen a lot of posts about these questions without any answers, so I started the thread in the hope that we might get a couple of templates by the end of it that people can use.

 

'I've got no money', thanks for your responses. I've basically been doing what you suggest on the F&F letters, but on the monthly payments I've only sent one lot of payments with a remittance advice as I suggested and 'ex gratia towards acc XXX' written on the back, but I take your point that that might be pointless.

 

I share the concerns of others on here who want to pay things off eventually rather than die with First Credit still phoning every day, but who want to try and preserve the protection that comes from creditors not coming up with enforceable agreements. I also share the concern that even without an agreement making token payments may look better if an agreement does eventually turn up.

 

Your proposed letter for a token offer sounds good. It does, however, depend upon them accepting in writing without reservations. I still wonder is their a form of words I can use on a remittance advice (or cheque) that would acheive something similar whether or not they agree in writing. I'm aware that people have tried things like this on F&Fs, sending a cheque with a letter, but it has not always worked. (I seem to remember reading of one chase where the court said it was binding and another where a court said it was not.)

 

Thanks.

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Sutherland, I am of the opinion that the writting of " This is in F/F of debt" on the back of a cheque which is then cashed by the DCA is not in itself a acceptance of the F/F by the DCA , it would def need to be in a agreement form. In addition the DCA are more likely to accept FFs the morecloser they are to 75% of the debt( this is if they have copy of CCA).

 

Manc1

MANC 1

 

 

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