Part 36 offers**W

[pt2537]

well, if youve finished reading that little lot, then i would check your email again cos theres more;)

[andrew1]

well, if youve finished reading that little lot, then i would check your email again cos theres more;)

 

Well I've been up all night and on page 673, so nearly there

 

Tell me please if anyone knows. How far in this argument can I go by using contract law? It's a big area I appreciate, but if I can support my paperwork with contract law which shows that my acceptance forms the contract too it will strengthen my argument, but...what impact might it have on the CPR36 rules & regs?

 

I know I made the acceptance, they know I accepted and have acknowledged same, the Judge needs convincing so I need everything and anything to back it up and somewhere in the law of contract whatever way the solicitors and bank want to try and twist things, a contract must have been formed - I just need to know how.

 

Digging, gathering, finding, researching is what we in the fan Club do well, there is a group of us ready and waiting to dig on this, producing things the way a District Judge will buy it seems to be the shortfall as we are not legally trained, so we will keep stripping this to the bone until we prove our point, it's just DJ's listen to legally trained people first, ask their advice for guidance first to confirm points of law, this time that's not going to happen. I need this in black and white in jargon which will blow their quasi [problem] out of the water.

Edited January 3, 2009 by andrew1

[pt2537]

well, if you rread my email there are case references in it too, im sure that we can find the cases that we need;) given that i have access to over £15K's worth of legal databases

 

 

I havent had time to research things myself, but im sure the info is there

 

My understanding is that this is a simple contract matter, offer acceptance, consideration, intention to create legal relations etc

 

so if one party breaches the contract, the other can sue for damages stemming from that breach

[andrew1]

well, if you rread my email there are case references in it too, im sure that we can find the cases that we need;) given that i have access to over £15K's worth of legal databases

 

 

I havent had time to research things myself, but im sure the info is there

 

My understanding is that this is a simple contract matter, offer acceptance, consideration, intention to create legal relations etc

 

so if one party breaches the contract, the other can sue for damages stemming from that breach

 

Thanks PT, I often wonder if you'll ever lose your job given the input you give on here, all in your tea breaks no doubt? :grin:

 

This info is the invaluable brick in the foundations, so thanks for that, we'll get digging.

[pt2537]

Thanks PT, I often wonder if you'll ever lose your job given the input you give on here, all in your tea breaks no doubt? :grin:

 

This info is the invaluable brick in the foundations, so thanks for that, we'll get digging.

Heck no chance of that ever happening mate

 

my bosses actually want me on here helping people, now how bizarre is that?

 

But to be fair to them they only want to help people and this is a way of doing so.

 

oh and the £15 K of databases, they are mine not works;) so no probs there. if you find any cases you need just drop me a email and you will have them by return

[andrew1]

Heck no chance of that ever happening mate

 

my bosses actually want me on here helping people, now how bizarre is that?

 

But to be fair to them they only want to help people and this is a way of doing so.

 

oh and the £15 K of databases, they are mine not works;) so no probs there. if you find any cases you need just drop me a email and you will have them by return

 

Have you got any vacancies?, I could do with a job like that. What a boss - I love helping people, just can't seem to make a living out of it!

[pt2537]

(5) A Part 36 offer or Part 36 payment is accepted when notice of its acceptance is received by

the offeror.

 

oh and thats part 36.8(5) that you asked about;) well prior to the amendments

[andrew1]

Begs the question of what the term " when notice of acceptance is received" means or can be construed as. Would a telephone call, acknowledged by a sentence in a letter which states "We refer to your telephone call of....during which you stated that you accepted our client's Part 36 Offer" be deemed a notice of acceptance? To most it would, to a Judge?

[pt2537]

(1) A Part 36 offer is accepted by serving written notice of the acceptance on the offeror

 

 

according to CPR 36.9 above it need be in written form

[andrew1]

Is there any mechanism I can use on forum which would allow the remainder of this case to be seen only by a select few people behind the scenes, so that we may all freely discuss what I have without the prying eyes of the 'visitors'. I have many things I want to ask and plan, but things are so sensitive now I can't keep emailing or PM' ing people - it's just not fair? But I still need the advice.

 

Thanks

[andrew1]

I cannot believe the despicable behaviour of these people:

 

The Judge has called us back to get confirmed from both sides whether the Part 36 was accepted by me or not, given the rather strange manner in which the finalising of the Offer and acceptance took place and today I receive a letter from their solicitors saying:

 

"Our client formally withdraws the Part 36 Offer set out in our letter of 18 September 2008 and the Tomlin Order forwarded on 5 November 2008.

As the offer has been withdrawn after the expiry of the 21 day period, the Court’s permission is not required for our client to withdraw its offer".

 

How on earth can they do that given the judge is to make his decision on the acceptance in court? This beggars belief..

[elizabeth1]

Liz,

In all the stuff you sent me, in particular the CFA, there is included at Condition 4, the following text:

 

4 What Happens if You Win?

 

If you win:

 

[1] You are then liable to pay all our basic charges, success fee, VAT and your disbursements...

 

[2] You will be entitled to recover our basic charges, success fee, VAT, your disbursements and insurance premium from your losing opponent.

 

[3] If you and your opponent can not agree the amount the Court will decide how much you can recover. If the amount agreed or allowed does not cover all our basic charges, disbursemetns and VAT, you pay the difference

 

[4] If the court carries out an assessment of our charges and disallows any amount of the success fee for any reason .. that amount ceases to be payable under this agreement unless the court decides that it should continue to be payable.

 

[5] If we agree with your opponent that the amounts to be paid for our basic charges, success fee or disbursements should be lower than the amounts payable in accordacne with this Conditional Fee Agreement, then the amounts to be paid under this Conditional Fee Agreement shall be reduced accordingly.

 

As I understand things, the case was a winner and a damages settlement was achieved without legal proceedings being issued. The next thing up for consideration was therefore the costs, the right to which was defined at [2] above. Further, proceedings to determine the amount payable for costs has not been issued (ie no costs only proceedings) and as far as I am aware you have not been invited to agree a figure for costs with your opponent. If that is so then evidently an agreement has been reached because your solicitor has deducted a shortfall between that recovered from the opponent for costs and that which the solicitor requires for his costs under his entitlement pursuant to the CFA.

 

However, under [5], by making that agreement in a way which did not involve you, the solicitor is bound to lower the amount payable under the agreement to that which is agreed as payable by the opponent. The net result would be that once the opponent pays the agreed sum for costs that represents payment of all that is payable by you under the CFA. Hence there is nothing which may be recouped from damages and applied towards costs.

 

That's the way I read the papers but if I have misunderstood anything please let me know.

 

x20

 

I have now had a reply from these solicitors - I'd written to them in December basically outlining the reasoning in the above post questioning the money taken from these awards as won and about the money belonging to my son not having gone before a court/judge for settlement to be formalised etc.. and this solicitor has written back with the following comments.

 

"At the time of settlement the issue of costs was discussed with you and you and you were advised that the terms of the CFA allowed us to hold back a sum of money from your damages to cover any shortfall between the legal costs incurred in pursuing your action and the amount recovered from the Defendant for legal costs. A form of Authority was then sent to you and subsequesntly signed and returned confirming that you agree that a shortfall would be deducted from your damages. (mmm!! we followed their advice and signed agreement yes - we were not aware that the contents of CFA were not as they should have been relating to their taking money off awards won)

I refer to Paragraph 4 of the Law Society T&C's which was sent with the CFA's signed by yourself and your family. This confirms sub para 3 that you are responsible for any shortfall and that we are allowed to take an amount on account of costs until the issue of costs is resolved. I also refer to page 2 of the CFA and the section entitled "paying us", which confirms that in the event of a shortfall in legal costs, it is your responsibility to pay this.

 

Secondly I will address the issue you raised in relation to your son's claim. In relation to this claim, I accept that it was resolved prior to him reaching age of majority. However in cases where offers are accepted on behalf of children no binding settlement is reached until a judge formally approves the settlement. It would however have been inappropriate and costly to make an application to the Court for approval of each element of your sons claim as and when each element was of the claim was resolved. It was also hoped that we would have been able to resolve the remaining heads of damage swiftly although this was not to be the case. In our experience the Court will only approve a settlement sum once all heads of damage have been concluded and in this case damages only concluded 1 day before your sons birthday.

 

It is good practice before approaching the Court to approve a settlementto have taken instructions from the Claimants litigation friend in relation to any offers of settlement. If, as is the case in the vast majority of claims, had the court approved the matter, this would have been a binding settlement. Therefore it was important for us to act in the knowledge that the sums provisionally agreed with the defendant were agreed by you, as your sons litigation friend. The provisional agreement would not have been binding until an infant approval had taken place.

Had your son not reached the age of 18 so soon after settlement had been agreed, as is our usual practice, an application would have been made for an Infant Approval Hearing. However in this instance it was felt that applying for an Infant Approval Hearing was likely to invite critism from the court because your son had reached 18 and should have been treated like an adult capable of of deciding whether or not to accept the Defendants offer ................

Finally I note your concerns in relation to the interest payable to your son. As explained above, although we had reached a provisional agreement with the Defendant, it was anticpated that once your sons claim for Diminution of Value of Holiday was settled the remaining heads of Damage would settle shortly after. This meant that we not have been entitled to request payment from the Defendant because the settlement required the approval of the court. Your sons money remained with the Defendants until either the claim had been approved or until they had reached the age of 18: at which point we requested payment from the Defendant. In any event the offers of settlement were made in full and final settlement of each head of damage, inclusive of interest and at the time you accepted these offers our correspondence stated that your son would have no further recourse for damages including interest. However as a GESTURE OF GOODWILL I am prepared to offer your son £250.00 in full and final settlement of any interest owed to him. I enclose a form of Authority for your son to complete and return. (Loss of Enjoyment was settled July 2006, Demunition in value of holiday settled Nov 2006, Remaining two elements were settled Aug 2007 = a year or so later)

I note your request for any additional notes of discussions held with you and your family members and confirm that details of all important correspondence to the issues you have raised has been sent to you"

 

(Oh no they haven't been!! I have specifically asked for ALL the copies of emails, transcripts of telephone calls and notes from telephone conference with Barrister and themselves - they haven't allowed me to have any of that information = they've given me what they want me to see)

 

Now it seems none of my questions have been answered by this reply above - seems this solicitor is saying "you signed it = we took it" ?? I did mention in my letter to them that we had not agreed to the costs as put forward to Defendants etc.. and they've not replied to that part of my letter they've "picked" sections that they wanted to answer as I've shown in blue above.

 

What can I write back to these solicitors to make them repay the money they took off us and how can I get copies of the correspondence I requested from them when they've held back the relevant conversations transcripts, emails etc.. is their any legislation I can use to get money back etc..? It really isn't our fault or problem this company settled costs with a shortfall surely? They never involved us in costs negotiations at all.

 

I can see in their costings several places where they had spoken to me on telephone and they've costed the same call to ALL members of my family in the costs as drawn up. By that I don't mean as in let's say a 20 minute telephone conversation they'd apportioned it to all 4 members of my family as 5 minutes each - what they've done is charge the whole 20 minutes to ALL members of my family = they've costed the call at 1hr 20 mins. I can see plenty of costs like this where their costing don't match the Diary of events that I kept. Likewise with matters like emails correspondence they've done a similar thing with costings charging every member of my family same email time etc.. I have not been shown these figures prior to their settling costs with Defendants I would have picked up on these errors BUT I was never shown costs till I SAR'd them recently and I had to go back several times asking for these costs sheets as they wouldn't give me them.

 

I'm wondering what to say next to these people - my son hasn't accepted the £250 yet as I am making him wait while I sort out what to do next.

 

Does anyone have any ideas?

[Goldlady]

Have you threatened to report them to the SRA or anything yet? I have an issue with solicitors where the other side have challenged the costs, which have been withheld from the amount we should have received and i am about to argue that if the other side are disputing the costs then we want to be credited for the amount that our solicitors have conceded, such as duplication of time spent on certain issues etc.

 

It is a disgrace that they can rip your son off and I will see what else I can find out regarding complaints etc.

[Goldlady]

And like you there have been all these negotiations about costs which I know nothing about, apart from that it is going to cost ME more.

[Goldlady]

And the solicitor acting for me is a friend:eek:

[elizabeth1]

Have you threatened to report them to the SRA or anything yet? I have an issue with solicitors where the other side have challenged the costs, which have been withheld from the amount we should have received and i am about to argue that if the other side are disputing the costs then we want to be credited for the amount that our solicitors have conceded, such as duplication of time spent on certain issues etc.

 

It is a disgrace that they can rip your son off and I will see what else I can find out regarding complaints etc.

 

 

I haven't threatened SRA or anything yet - what I did was write a letter including all the advice JonCris, x20 and yourself had given me relating to my son's stuff and this CFA that they are relying upon etc.. - I asked for the money back that they took off us etc..

 

The reply I got was basically avoiding my questions and they focus on their "you signed it" reply. Of course I signed it because I took their advice and believed they were correctly advising me etc.. To me their reply is complete nonsense and their way of brow beating me.

 

My reason behind asking for the transcripts of telephone calls was because I did question these things at the time of settlement and the Paralegal involved was quite unprofessional and she yelled down phone "FFS you are making £xxx's out of this you either settle or fund this case yourself I want £5k person up front fees" she was so adamant that I settle part36 then and there - BUT I'd loads of queries and she lost her "cool" with me for asking questions.

 

I had such a GUT feeling about this stuff hence my questions.

 

I am going to SAR the defendants me thinks - because I can see in some letters in these folders where our solicitors settled with Defendants for what was more or less half of the fees involved in these cases/claims. We were never informed of any costs involved or negotiations etc.. solicitors even kept these out of the SAR when I requested that - it took months of needling to get these costs list and I can spot plenty of "discrepancies".

[JonCris]

It appears you have made every effort to settle this matter. I now suggest you complain to the following Welcome - The Office of the Legal Services Complaints Commissioner (OLSCC)

 

It won't cost you anything but it will cost the solicitor & lot of time & trouble to explain themselves

[Goldlady]

I think that is the key - if they have reduced the costs to the other side then you should not be paying them either:confused:

[elizabeth1]

It appears you have made every effort to settle this matter. I now suggest you complain to the following Welcome - The Office of the Legal Services Complaints Commissioner (OLSCC)

 

It won't cost you anything but it will cost the solicitor & lot of time & trouble to explain themselves

 

 

Thanks for that JonCris I will go that route now then. The guy who replied was their Senior partner in the International Travel Litigation Dept - he is just "fluffing" over things and attempting to browbeat me.

 

What do I do about the offer to my son? - do I get him to accept this offer of £250 or do I wait and see what the OLSCC say? I don't want to see my son miss out.

 

I am thinking maybe let my son sign accepting this offer as their GOGW and inform this solicitor that I am not at all happy with his reply and I am going to the OLSCC to let them look into it because I think they were wrong and should not have kept compensation money etc..

 

I don't know what goes on in this company BUT I've never had a straight answer to any questions from them.

[JonCris]

They'll probably refuse to make the payment (I know I would) but you could write & accept their offer 'without prejudice'

 

In the meantime & as you appear to have exhausted all other avenues you should make a formal compliant to the LSC

[elizabeth1]

They'll probably refuse to make the payment (I know I would) but you could write & accept their offer 'without prejudice'

 

In the meantime & as you appear to have exhausted all other avenues you should make a formal compliant to the LSC

 

 

OK thanks JonCris I shall write a letter tonight to these solicitors and will tell them that I have done everything that I can do to resolve matters and that I've now no alternative but to go to Legal Complaints Service.

 

Seems these people are being unreasonable in not answering the questions I raised - they've answered the elements of what they wanted to answer so I can't do any more than I have done.

 

Thanks everyone for your help with this I do appreciate it.

[andrew1]

Elizabeth1, why don;t you list out the questions you asked which they didn't answer and include them in another letter to them. Thank them for their letter and for partially answering some of your questions, but would they now complete the task and answer the questions below and clarify areas omitted from their letter of xx/xx/xx. Upon receipt of which, if there are any further unanswered questions you will continue to write until they are all answered fully, without compromise or waffle, failing which the final letter will be to the LSC...Do a Jeremy Paxman on them....answer or I'll come back and ask again until you do!

Edited February 4, 2009 by andrew1

[humbleman]

without hijacking this thread, could I ask your views on the following:

 

Say the claimant wins, can a defendant ask the judge to issue a Tomlin Order as opposed to a judgement, if his current finances don't allow him to pay the judgement in full. I am shortly going to accompany a friend whose business folded up and the bank is now chasing him over a guarantee. He has offered to pay them 75% (of the claim) over a period of two years with the help of friends and relations, but they want all now. From his personal income and expenditure, he only has about £60 left over a month and this would take about 30 years to pay.

 

For obvious reasons he doesn't want a judgement.

 

Any comments greatly appreciated.

[JonCris]

Humbbleman offering the bank 75% is very generous.

 

Personally if I were your friend after having such an offer refused I would let the bank do their worst. It'll be them who will be the losers as the court will only take into account the income of your friend

[humbleman]

Humbbleman offering the bank 75% is very generous.

 

Personally if I were your friend after having such an offer refused I would let the bank do their worst. It'll be them who will be the losers as the court will only take into account the income of your friend

 

Might I add the that the 75% is all that is due to them since they have actually made a mistake on the claim. Therefore he is actually offering them 100%.