Part 36 offers**W

[surfaceagentx20]

OK Liz,

Gimme some kip and some breakfasts and something will be here to fire off at them by the weekend.

 

x20

[elizabeth1]

OK Liz,

Gimme some kip and some breakfasts and something will be here to fire off at them by the weekend.

 

x20

 

 

Thank you

[andrew1]

x20, sorry I filled up your PM box!

 

Situation:

 

I had the repossession Order back in Dec 07, I challenged this with a counterclaim on a further advance to my mortgage back in 2003, battle raged, many issues came up in addition to my counterclaim during this year, but I finally accepted their Part 36 offer recently at the eleventh hour which they set out as below. As you can see, s.1 of the Part 36 clearly determines the basis of their settlement - the 2003 further advance.

 

A Tomlin Order was then sent stating "Further to our agreement on xxxxxx, we enclose a Tomlin Order setting out the terms of settlement" but the Tomlin Order document added restrictions to ANY further claims against the mortgage. The bank ignored/evaded or avoided addressing all other issues I had raised (which were not insubstantial) but now wishes to introduce them now by gagging further questions on them. I replied saying if they wished them to be addressed then either, pay compensation as a cover-all and I'll sign the Order as is or remove the Tomlin clause 8 partially accepting the clause (in blue below) and ignoring the rest so that I can come back and address them later. They are refusing point blank.

 

My question is, this to me is an addition to the Part 36 offer I have accepted and I am wondering if this addition is permitted or whether I can now go back and challenge this? (and how?) They are refusing to budge on the interest rate (I may get the 1.5% reduction announced, but this is not included in the Tomlin) I will need to get that clarified or it will become set in stone no doubt.

 

Part 36 offer

 

We are writing to advise that our client is prepared to make the offer detailed below in order to resolve this matter. For the avoidance of doubt, the offer is made in full and final settlement of the whole of our client’s claim plus costs:- ( their clients claim was a total repossession order)

 

1. Our client agrees to write off the balance owing in respect of the further advance agreement dated xx/xx/xxxx. The amount required to redeem this part of the account would be £xxxxxxxx as at 30 September 2008;

 

2. You will remain liable for the remaining balance owing under account number xxxxxxxx (currently £xxxxxxxx).

 

3. Our client agrees to capitalise the arrears outstanding under account number xxxxxxxx(currently £xxxxxxxx).

 

4. You will repay the total balance outstanding under account number xxxxxxxx by regular equal monthly instalments over the remaining term of the loan. If you accept this offer, our client will capitalise the arrears and write to you to confirm the amount of your monthly instalment which you will be required to pay.

This offer will remain open for acceptance for 21 days from the date it is made (i.e. received by you). After 21 days you may only accept the offer if we agree the liability for costs or the Court gives permission. I accepted this offer.

 

Please note that we intend to bring this letter to the Court’s attention on the question of costs and interest in the event that the offer is not accepted and the matter proceeds to trial. In the event that you are awarded a settlement equal to or less favourable than that detailed above, we will seek an Order that you pay our clients’ costs on an indemnity basis and interest up to 10% above base rate upon those costs from the date herein.

 

If you are unsure of the terms or the effect of this offer, we suggest you seek independent legal advice.

 

 

 

The subsequent Tomlin Order:

 

The Schedule

 

1 As at xxxxxxxx, the Defendants owe the Claimant the sum of £xxxxxxxx under account number xxxxxxxx

 

2 From the sum of £xxxxxxxx, the Claimant will write off the balance owing in respect of the further advance agreement dated xxxxxxxx, which as at 30 October 2008 would be £xxxxxxxx. This sum represents the further advance amount of £xxxxxxxx plus interest less repayments.

 

3 The Defendants shall remain liable for the balance of the sums owing under account number xxxxxxxx. The balance owing under account number xxxxxxxx is £xxxxxxxx as at 31 October 2008 of which £xxxxxxxx is arrears after the write off of £xxxxxxxx set out above

 

4 The Defendants shall repay the sum of £xxxxxxxx plus interest in accordance with the terms and conditions of the mortgage in monthly instalments as set out in paragraph 5 below. For the avoidance of doubt the interest rate is the Claimant’s Standard Variable Rate. The current interest rate applicable to the account is 7.09%.

 

5 The Claimant agrees to capitalise the arrears of £xxxxxxxx.

 

6 The current Contractual Monthly Instalment in respect of account number xxxxxxxx is £xxxxxxxx due on 28th of each month. The Defendants’ first payment shall fall due on 28 November 2008.

 

7 The Claimant remains entitled to exercise its rights under the terms and conditions of the mortgage. If the Defendants default on the payments due under paragraphs 3 to 6 above, the Claimant may seek possession of the Defendants’ property at xxxxxxxx

 

8 The Parties agree that the consideration set out above shall be in full and final settlement of the Defence dated xxxxxx 2007 and of all claims between the above parties arising out of or in connection with the facts and matters in dispute in the proceedings whether or not such claims were expressly set out in the proceedings and whether or not such claims are known to, have been notified to, or are in the present contemplation of the above parties. (I asked for this part in italics to be removed - they refused)

 

9 The terms of this agreement shall remain confidential between the parties and their legal advisers save that the same may be disclosed:

(a) To the extent necessary for the purposes of enforcement; and

(b) To any court, government, or other authority to the extent necessary for compliance with a lawful obligation by the party disclosing it, and to the extent necessary to any professional adviser to that party in connection with the giving or receiving of advice in relation to such disclosure.

 

Now, the General Form of Judgment or Order from the court stated on 3rd October that the proceedings be adjourned for 2 months to allow parties to attend a settlement meeting ( we settled without this meeting) but that takes it to 3rd December. The court be advised by 12th Dec and the matter be listed for a case management meeting on 2nd Jan. So, there is little time left and this is one of the cards in this poker game the solicitors and bank have used, taking things up to the deadline by drawing long periods of silence - good card players!

 

In a nutshell, can this Part 36 be settled with a Tomlin Order like this which has effectively changed the Part 36 we accepted?

 

One further thought, if I decided to push this and request the settlement meeting , despite the shortage of time, would I under the CPR 31 rules be able to demand the 'thinking' behind the workings of the deal within the Part 36 offer. This to date would have been classed 'legally priviledged' but if a settlement meeting were convened then surely I would need to know how their offer were made up just as they require info on my claim?

 

 

.

Edited November 25, 2008 by andrew1
added last question

[andrew1]

Bump

[JonCris]

Do you any documented evidence of your original presumed agreement?

[JonCris]

Andrew having read your post 78 the answer no it cannot. What was agreed was what is agreed. They cannot alter it without invalidating the part 36 offer meaning the court may consider it not to be a genuine attempt to settle

 

I should write back & remind them they have arbitrarily altered the terms of the agreement which you reject a fact which you will bring to the attention of the court should the matter go to disposal.

 

This assumes you have evidence of what was agreed

[andrew1]

Andrew having read your post 78 the answer no it cannot. What was agreed was what is agreed. They cannot alter it without invalidating the part 36 offer meaning the court may consider it not to be a genuine attempt to settle

 

I should write back & remind them they have arbitrarily altered the terms of the agreement which you reject a fact which you will bring to the attention of the court should the matter go to disposal.

 

This assumes you have evidence of what was agreed

 

Thanks Joncris,

 

I do have evidence of what was agreed as it was the Part 36 offer document itself. I think they are just trying it on to get a cover-all so I won't come back at them again. They are feeling extremely hurt just now because the settlement figure (which will be just reducing my mortgage balance rather than cash) is sizeable. I raised many issues during the year of this claim and counterclaim which they have totally chosen to ignore. I really don't think they have right now to draw all these issues into the final settlement equation by asking for a blanket ban when they have so blatantly disregarded them in the past. Pay me and I'll agree, don't and I won't.

 

Thank you for this.

 

A1

[surfaceagentx20]

Sarah,

JC is right. The agreement is achieved by the offer of Part 36 terms and the acceptance of those terms with the terms representing the entirety of the agreement. At the moment of acceptance of the Part 36 offer the proceedings are stayed on the terms of the offer [CPR 36.11(2)] and on the basis the notice of acceptance is filed at court in accordance with the guidance given at CPR 36 PD 3.1 no further order is needed.

 

If notice of acceptance was not filed at court (and let's face it, CPR 36.9(1) does not say the offer must be filed at court contrary to the Practice Direction), then the purpose of the Tomlin Order is to give effect to the agreement by the embodiment of the agreed terms within the four corners of an order of the court.

 

The introduction of a new term or the adjustment of an already agreed term represents a departure from the agreement and may be resisted by an application to the court for an order staying the proceedings on the terms set out in the Part 36 Offer.

 

x20

[andrew1]

x20, thank you. we expect far too much of you, but it is really appreciated when it comes...I'm so strapped for time here my nails are up to my elbows!

 

Thanks JC too, waiting an hour seems like a day when trying to sort these things out and I have another big one on my shoulders to boot with much the same problems of a multiple agreement...no doubt I'll be back on that one, but I cannot afford the legal representation of solicitor and barrister so hacking this alone is a big ask...into central court soon having been referred from local court at directions cos judge knew too little about the CCA...aaaggghhh! I have to get the exchange of lists and documents very quickly and a bundle ready...hairy stuff! - I'll be back but thank you both.

[elizabeth1]

Liz,

If you would like me to, I will prepare a draft letter to be sent to the solicitors having conduct of the case in which you will challenge the right to make a deduction from damages. Just say the word.

 

x20

 

 

x20 - I realise you are busy - I am just bumping this up incase this had been forgotten about.

[andrew1]

I am putting together my disclosure documents for another case I have to deal with now which is, unlike this previous one, actually taking me to court.

 

An email was produced by the company concerned as a core to their defence which I never ever received at a recent hearing which I doubted the authenticity of and lost the day as a result of, however in the companys own disclosure documents sent to me there are 2 emails which effectively show me I was probably right and I would now like to extract the audit trail of this alleged email from their companys system. Can anyone tell me how I can do this? the CPR 31 has been referred to elsewhere, but I am not sure of the procedure of forcing this company to provide me with this particular documentation at short notice before court.

[banker_rhymes_with]

Hello Andrew1!

 

If you can, I'd seek some independent verification that the email was actually sent, such as via ISP Server Logs etc.

 

i.e. from their ISP, and then speak to your ISP to see if their Server Logs show an email being handed over to them at that time and from the IP of their email Server.

 

If you have any emails from them at all, you may be able to view the email Header to see the Routing, and from that you can see which ISP they may be using from the originating IP, or which ISP it was first routed to if they have an in-house Mail Server.

 

Some bankers think email is handy to pretend they sent something, but the audit trail that can be possible will soon disabuse them of that delusion.

 

You can start this by having a good look at any emails you do still have, and see if the Originating IP numbers point to the same place every time, or if they may've changed their facilities at any stage between then and now.

 

For example, if I send you an email, it goes from my Email Server, to my ISP, then will bounce around the Web until it reaches your ISP's email Server, who will then hand it over to your PC...either via your PC Polling their Server, or a direct feed in.

 

IOW, if they say, look, our ISP (Demon) says we did send you the email.

 

Then you come back with:

 

Hold on, the ISP you claim to have confirmed this (Demon) was not the same ISP you were using at that time (BT), plus my ISP (Eclipse), says they never received any emails from BT or Demon on that day and at that time.

 

...then it could all start to look a bit sideways for them!

 

But the key is to try and get what information you can from them, and then cross-check that with your own ISP to fill in the blanks.

 

If your ISP is able to say no email was handed over to any of their email Servers at that time and on that day and from that IP, then that could sink any claim they make to have sent you the above handy email.

 

Cheers,

BRW

[surfaceagentx20]

See also CPR PD 31 Paragraph 2A which deals with the disclosure and inspection of electronic documents. I'm no techie whizz but it seems to me there may be some prospect the production of an electronic copy of the email, copied to a CD say, may contain revealing 'Properties' information by a right click of the mouse.

 

I've not forgotten you Liz. Just slow.

 

x20

[andrew1]

x20 thank you, that's great. Can you tell me though, do I just write to the company and say something like " Under CPR PD 31 para 2A I request a copy of..... " or do I have to do this via the court, copy the court or what?

[surfaceagentx20]

Your opponent's list ought to identify what steps have been taken to locate electronic documents and then list those documents. You then become entitled to inspect them. You may inspect document physically by attendance upon the other party. You may also ask for electronic copies of electronicdocuments to be supplied on CD or other like media. In asking, ensure you provide the necessary undertaking to meet reasonable copying charges under CPR 31.15. If the other side refuse the request, you may ask the court by application notice for an order deciding the question.

 

Electronic inspection is becoming more and more prevalent to the point where, certainly in the Commercial Court, it is not uncommon for an order to be made directing inspection of paper documents by the provision of pdfs with CDs of pdfs to be made available at trial in lieu of or in addition to the age-old bundle.

 

x20

[andrew1]

I've just had a look over this List of documents standard disclosure and the statement says on the first page with Court details etc:

 

" I did not search for documents pre dating (the agreement date)"

 

"Located elsewhere than the office of the claimant"

 

"In other categories other than those relevant to the claim"

 

and....

"for electronic documents"

 

Page 2 begins:

 

I did not search for the following:-

 

"documents contained on or created by the Claimant"

 

PC's

databases

back-up tapes

mobile phones

notebooks

PDA devices

portable data storage media

servers

off site storage

laptops

handheld devices

 

mail files

calender files

spreadsheet files

document files

web based applications

graphic and presentation files

 

 

Now does this mean that although said email is listed in the documents within the Disclosure that they can get out of providing or me asking for the data I require of audit trails on their system for this email?

 

It has to be by Friday so I need to move on this..

[surfaceagentx20]

To me, that looks like a disclosure statement saying there has been no search of any kind for electronic documents. In my view, that is plain lazy.

 

Where electronic communication has taken place, one or more electronic versions of that communication will have existed on the sender's computer or server or both, inluding any electronic copies forwarded internally with the business office of the party concerned. Where that communication assists or damages a parties case (ie is not neutral) that communication in all its forms will be a communication disclosable under standard disclosure.

 

If I understand you rightly, you have placed an email in issue. Therefore the email in electronic form and printed form and all its reproductions, re-sends and replies become documents of which you are entitled to disclosure.

 

Where a party fails to comply with its disclosure obligations another party can apply to the court for specific disclosure. Before doing so, write to the other side pointing to the laziness of the disclosure so far and to the duty to carry out a proportionate search for electronic documents and that in particular, you have placed an email in issue. Further, that in the circumstances you require them as a matter of urgency to make that search for electronic documents and to give standard disclosure of what that search reveals. In your letter, you may as well warn them that you will require production of electronic copies of electronic documents on inspection.

 

What has to be done by Friday?

 

x20

[andrew1]

You sir are magical - thank you..

 

What has to be done by Friday? - My disclosure documents have to be in and sent to them also...

[elizabeth1]

I've not forgotten you Liz. Just slow.

 

x20

 

 

Thank you!!

 

I know you've stacks on your list of "to do's" - I know you'll get around to this when you have time

[andrew1]

Would you mind if I just go back to my Post 78 and the Part 36? I have had a reply from the solicitors thus:

 

" We refer to our telephone conversation on 10th October during which you stated that you accepted our clients Part 36 Offer. ( true )

 

Pursuant to Part 36.9(1) a Part 36 Offer is accepted by serving written notice of acceptance on the offeror. We subsequently sent out a Tomlin Order setting out the terms of the offer and requested you signed and returned it to accept the offer. (..and added terms I didn't agree with)

 

To date you have not signed and returned the Tomlin Order and have instead proposed alternative terms of settlement. Accordingly, our clients offer has not been accepted. ( I suggested they pay me something in addition to the Offer to have clause 8 in full signed off as part of the deal)

 

Your letter 26th November appears to suggest that you have effectively accepted part of our clients offer, the cause regarding the write off of the amount owing under the further advance agreement, but you have not accepted the terms set out in the Tomlin Order. Your agreement to individual terms whilst rejecting others, does not amount to effective acceptance of the offer.

 

Our client denies that the terms set out in the Tomlin Order were less favourable than those proposed in our letter of 18th September 2008. The figures in the Tomlin Order differ as the balances increased and the arrears figure for the for the further advance agreement was included in the write off. Accordingly, if anything, the Tomlin Order is more favourable to you than the Part 36 Offer as the balance written off is higher. ( this is negliagable)

 

Any settlement agreed in this matter is intended to resolve the matter and provide certainty for both parties. ( I'm happy to do that) Accordingly the settlement must be in full and final settlement of all claims arising out of the circumstances.( the additional items referred to in this clause 8 'cover all' clause were not included in the original counter claim) The interest rate proposed in the offer is that interest rate applicable to your account which you agreed to when you took out the mortgage. Our client will not agree to a lower interest rate at this time.( that's another issue I rose regarding the discounted rate we were on which expired in May, I asked for a discounted rate, they refused - probably because they are miffed at having to pay me out)

 

The terms of our clients offer remain as set out in the Tomlin Order. we enclose a further copy of the Tomlin Order for your convenience.

 

If you accept the offer, please sign and return Tomlin Order within 14 days. If we do not receive the signed Tomlin Order within 14 days, we anticipate receiving instructions to make an application to strike out your defence.

 

yours faithfully "

 

Now if you go back over my post 78, the Part 36 offer and come back to the first paragraph of this letter, you will see that the Part 36 offer DID NOT include any conditions other than full and final settlement of their clients ' whole claim' ( which was the repossession) and will write off the balance in respect of the further advance ( which was my counter claim) and I accepted that on the phone once they sent over the Offer by email. There was no Tomlin Order at that time with these conditions.

 

Throughout the year it has taken, many other items arose which I questioned and they totally ignored answering them, but in this Tomlin Order they now wished me to sign away any further claim I might have and to be honest there is at least another £20-30,000 I could claim along with a number of other things I can't mention here, but as they have settled for the smallest figure (large though it is) possible I saw no reason that I should accept these terms without being compensated somehow for them and they are flatly refusing.

 

I need to format a response to this letter whilst upholding my position and without screwing up, as x20 said it is now a game of poker and I'm playing my hands, but the 14 days offered in this letter takes it over the Order of the court to supply settlement details which I believe to be Friday coming, so if anyone can offer a word of advice as to how I respond I would be grateful.

[JonCris]

Write back I say something like "I refer to your letter & see no purpose in entering into protracted and fruitless correspondence and will only state again that your offer and subsequent confirmation letter does not match the Tomlin Order prepared by you"

[andrew1]

I’m sorry if this is a little long, but I need to conclude this and would appreciate an opinion.

 

I wonder if you would caste your eyes over this letter I received from the mortgage company’s solicitors. We are currently going through the final hands of poker and I need to seal this. My objections currently are:

 

a) they have made a part 36 offer at the minimum end of the scale relating only to my counterclaim against a further advance. I have accepted that offer verbally and confirmed as such in various areas of correspondence with their solicitors.

 

b) During nearly a year of letters back and forth and a lot of waiting for replies from them, I have never had addressed many other issues I raised which arose subsequently from my research into their practices which I requested answers to and recompense for which they have chosen to ignore.

 

c) Seven weeks after the Part 36 was accepted by us the Tomlin Order arrived with conditions (s.8 ) which restricted any further raising of these issues herein after and I have asked them to compensate me for that if they want me to sign, they are refusing and now using this last letter to squeeze us…

 

I need to respond.

 

Their solicitors copy of a letter received today addressed to the Court:

 

Letter 1.

 

“ We act for the Claimant, xxxxx bank, in the above matter.

Pursuant to the Order dated 3 October 2008, our client is to inform the Court by 12

December 2008 of the result of the settlement meeting with the Defendants.

The parties have been negotiating settlement, however no settlement meeting was held.

The Claimant has allowed the Defendants until 16 December 2008 in which to respond to a Tomlin Order setting out settlement terms.

In light of this, the Claimant requests a short extension of time to the directions set on 3 October 2008. The Claimant proposes to write to the Court on 17 December 2008 to confirm the result of settlement negotiations and request directions.

Yours faithfully,

 

Letter 2 addressed to us:

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

Dear Sir and Madam

 

"We write in response to your emails of 3 and 8 December 2008.

1. Interest Rate

 

The Tomlin Order states:

 

“The Defendants shall repay the sum of £xxxxxx plus interest in accordance with the terms and conditions of the mortgage in monthly instalments as set out in paragraph 6 below. For the avoidance of doubt the interest rate is the Claimant’s Standard Variable Rate. The current interest rate applicable to the account is 7.09%.”

Interest will be applied to the sum of £xxxxxx. in accordance with the terms and conditions of your mortgage. The conditions state that the interest rate which applies to your account is xxxx bank Standard Variable Rate. As at the date the Tomlin Order was drafted, xxxx bank Standard Variable Rate was 7.09% however this rate may vary. The interest rate applicable is not fixed at 7.09%.

2. Financial breakdowns

We have requested statements of account from our client to show how the figures in the Tomlin Order were calculated. We are still awaiting the same and will provide these in due course.

 

3. Directions

 

Our client is to inform the Court of the result of settlement negotiations by 12 December 2008 and we have asked you to respond to the Tomlin Order within 14 days, i.e. by 16 December 2008.

We propose to write to the Court prior to 12 December 2008 to explain the current position and that we have allowed until 16 December 2008 for you to respond to the Tomlin Order.

We will ask the Court to allow us until 17 December 2008 in which to file suggested directions.

The matter has been listed for a case management conference on 2 January 2009 at which we anticipate directions will be ordered.

We note the points mentioned in your email of 8 December 2008 (see below) , however, our client’s position remains as previously stated.

 

Yours faithfully

 

I'm not so fussed about the interest issues, more the s.8 Tomlin Order Conditions.

 

My emails referred to:

 

3rd December :

 

I acknowledge receipt of your letter of 2nd December 08 and will respond shortly, but can I just ask you to clarify a couple of things please?

 

1) You are stating that the xxxx bank are not prepared to change the interest rate in the Tomlin Order of 7.09% - can you have confirmed for me how this rate is determined and under what conditions and when will this change especially in accordance with the changes mentioned in my previous correspondence? Are they saying my rate is from here on in fixed at 7.09%? If so why?

 

2) In your letter 21st Nov you stated you/your client would provide me with the breakdown of the figures I asked for in my letter 7th November. In order that any documents I sign are reconciled and agreed with the mortgage statements I will not know exactly what the true position is until I receive them, can you arrange this asap please.

 

3) You have requested that I reply to you with signed documents within 14 days, it is my understanding that we are to inform the court of the results to the settlement by 12 December which actually takes the 14 days past that date. Perhaps you could explain so that court requirements are adhered to?

 

I may/will have more questions, but if you would kindly deal with these in the mean time I would appreciate it.

 

Thank you

 

8th December email to solcitors:

Dear

 

Whilst I am awaiting your response to my email of the 3rd December, I'll respond to your letter of the 2nd having taken opinion on this.

 

It has been acknowledged that we have accepted the Part 36 offer from your client dated 18th September 2008 and whilst I acknowledge this needs to be formalised in writing, a "verbal contract " is not unrecognised by the courts:

 

"Certainty and Completeness of Agreement

Agreement is reached between contracting parties when an offer is made by one party which is clearly and unequivocally accepted by the other party."

 

The first paragraph and s.1. (of the Part 36 ) clearly states that this is in full and final settlement of your clients whole claim ( which was for total repossession) and s.1 says emphatically what it relates to - " in respect of the further advance". The Offer makes no mention of any other items or issues raised throughout this year and refers solely to the Further Advance and the sums involved, it contained no conditions as so prescribed within s.8 of the Tomlin Order forwarded seven weeks later on the 5th November 2008. One can only conclude that since your client had chosen to ignore all other items and issues until that time that the offer firmly and conclusively relates to our initial Counterclaim made which related to that Further Advance at the time and it is so referred to in that manner by them.

 

The Offer was accepted within the prescribed period and acknowledge by you as such. The Tomlin Order 'conditions' have been added seven weeks later, specifically within s.8. and create a less favourable position, your explanation in your correspondence that the financials may be more favourable are as a result of your clients procrastinating in their replies and their negotiating practice of exclusiveness rather than inclusiveness of the negotiating parties, having entered no position of 'negotiation' discussion whatsoever. Your explanation also attempts to divert attention from the s.8 issue to the juggling with dates and figures.

 

As mentioned, I accepted the offer your client made. The extension to section 8 takes the acceptance beyond the Offer and Acceptance, concluding your clients claim and our Counterclaim dated 12th November 2007. I/we have absolutely no issues in signing within the scope thus highlighted in red:

 

8 The Parties agree that the consideration set out above shall be in full and final settlement of the Defence dated 12 November 2007...... and of all claims between the above parties arising out of or in connection with the facts and matters in dispute in the proceedings whether or not such claims were expressly set out in the proceedings and whether or not such claims are known to, have been notified to, or are in the present contemplation of the above parties.

 

Whilst I too wish to have conclusion, inclusiveness and completeness, your client has ignored that in what has been a one sided negotiation process by any standards of the imagination and if they so desire this 'completeness' and 'certainty' then they must take account of that within their negotiated settlement as has been requested by me throughout and ignored, if they wish to ignore it then just leave their extension to clause 8 out of the Tomlin Order. It is your client who are seeking to benefit from their decision to ignore all aspects raised throughout this claim and counterclaim, use delaying tactics ( which I will accept they will deny) in order to seek an advantageous positions (fair play to them, this is like a poker game after all) but at the end of the day, in negotiations we need a win-win and slipping this in at the end is not the way to achieve that.

 

As stated before, the claim and counter claim can be finalised simply by either removing that part of s.8 and we settle as I have accepted or make me an offer I can accept to cover all else so that s.8 can be left as is and I will sign this. Seeking a strike out will be at your clients peril, I would have thought you'd have known better than to suggest this. I might not be legally trained, but......( I state this as they would hardly wish their case with all the evidence I have which would discredit them badly to be bought before a court IMHO that is)

 

I will accept a payment outside of this arrangement ( meaning as a cash compensation payment rather than a reduction in mortgage as the P36 has been) as it relates to additional items raised, paid into my current account, it does not have to affect these details outlined within the Offer.

 

I look forward to hearing the results from my previous email (below) shortly and your clients response to the enclosed

 

Yours sincerely

 

My letter 26th November to Solicitors:

 

"I am in receipt of your letter 21st November less the attachments as confirmed by my email of equal date.

 

I regret to inform you that your clients Tomlin Order conditions specifically breach the Part 36 Offer made on the 18th September 2008 and I specifically draw your attention to the first clause within that offer thus:

 

“ 1. Our client agrees to write off the balance owing in respect of the further advance agreement dated 24 October 2003. The amount required to redeem this part of the account would be £xxxxx as at 30 September 2008 “

 

It was that particular clause which we I agreed to accept and the one accepted within the 21 days time period applicable to the CPR - Part 36. The Tomlin Order conditions, clause 8 in particular, is an addition to that offer and now makes that offer less advantageous and I draw your attention to CPR Practice Direction 36.3 (6) as to the procedures your client will need to follow to enable them to include that.

 

I have made it quite clear during this last ten or eleven months that certain other misdemeanours on our mortgage have been exposed whilst researching our defence to your clients repossession claim, I have questioned certain transactions and actions within the said mortgage since its inception in 1989. Your client has systematically chosen to either ignore, evade, or avoid any of these issues which I felt both needed addressing and settling and felt would be best dealt with at the same time as this particular case for the sake of completeness.

 

However, it has been your clients choice, and they have chosen to take and enjoy a considerable period of time between their responses to come up with not one answer addressing any of these further issues. Their final Part 36 offer, set out quite clearly, concisely and specifically what their offer comprised of and that Ms xxxxx was the further advance of 2003, the subject of my counterclaim, and it is that which we accepted.

 

Therefore, I regret that if your client wishes to change the terms of this Part 36 offer by inserting less favourable terms within their Tomlin Order then your client needs to go through the correct procedures of the court to do so according to the CPR directive. As you will know, the introduction of a new term or the adjustment of an already agreed term represents a departure from the agreement and may be resisted by an application to the court for an order staying the proceedings on the terms set out in the Part 36 Offer.

 

I have already provided your client with two alternatives,

 

1) make a consideration as previously suggested in relation to the ‘general’ requirement of clause 8 that all or any of the issues that have been raised, thought about or contemplated be signed away forever as described in my previous correspondence or;

 

2) remove that part of clause 8 previously identified which will leave me the right to raise the issues and get them addressed at a later date and will cost your client nothing whatsoever at this time

 

I will also provide you with another,

 

We have until 3rd December to convene a settlement meeting, arrange that and we will discuss the detailed issues outside of the already accepted Part 36 offer with a mediator. I have accepted the Part 36 your client made which will be presented to the court should this matter go to disposal, I will of course then require you to furnish me with the full detail and rationale behind your clients Part 36 offer if they are then wishing to change it.

 

I appreciate that within the current climate your client may be upset and unwilling at having to recompense us for their misdeeds over this further advance, but they have only got themselves to blame, they should have got it right in the first place. That is what the Law Lords say, “if the original creditor cannot get the agreements right to begin with, then they deserve to lose them”. You will appreciate too that I have had much opinion caste over this case and I have been reliably informed that your client has got off lightly, despite the numbers involved.

 

I am happy to sign a complete amnesty on making any further claim against what has preceded this particular claim and counterclaim within my mortgage, but your client will have to eat humble pie and compensate me for the inclusion fully of clause 8 or remove it, as I say, it will then cost them nothing. They cannot have it both ways, and they cannot change the terms of the Part 36 offer – period. I am more than happy to settle in total confidentiality.

 

I will leave that for you to discuss with your client, but they cannot spend another few weeks languishing on this as the ball is now firmly in their court so I expect a speedy response.

 

 

The Interest rate.

 

Your letter dated 21st November states that the Standard Variable rate is 7.09% proposed within the Tomlin Order. Your clients Standard Variable Rate was indeed 7.09% until 3rd November 2008 when it reduced to 6.94% and as at 3rd December will reduce again according to Government requests by a further 1.5% to 5.44%. I presume and would like confirmed that my rate will fall accordingly and not remain as stated at 7.09%.

 

I have also been informed that to qualify for discounted rates, customers are subject to certain criteria: Loan to Value; Arrears; litigation; not changing lenders.

 

I will have a mortgage of £xxxxx +/-, the value of my property at its last valuation was between £x million and £million, taking current economics into account lets hazard £xxxxas a conservative figure. I have been quoted by a reputable estate agent a yield of £xxxx a month in rental if I rented too. Loan to Value then qualifies me. Arrears are being capitalised so there will no longer be arrears, litigation will have ceased so that will not be an obstacle and I have no plans to change lenders, therefore, if your client does not wish to be accused of vindictiveness as a result of having to pay out on this counter-claim then I suggest they reconsider their position or give me a concise reason for not affording me what other customers are entitled to with regard to a discounted interest rate. We can then take it up with the FOS if necessary if their answer is unsatisfactory.

 

If you wish to convene a meeting it will have to be soon, please contact me and I’ll see if I can fit it in, if you wish to proceed with court as you are implying having now received my acceptance of your clients Part 36 then be it upon yourselves to face the consequences or, if your client reluctantly or otherwise wishes to accept my offer of settlement for inclusion of clause 8 then please confirm and forward the documentation omitted from your posted letter and email with the adjustment to clause 4 as previously advised (should refer to clause 6 not 5) and we will sign it and you will have it by return of post.

 

Whilst I see no reasons why I have a need to accept confidentiality as I have done no wrong only your client has, I will accept a confidentiality clause for the sake of expediency and as a part of the package. However, your client does not deserve such a privilege given the manner in which they have behaved, both back in 2003 or now. People in less fortunate positions than I facing repossessions and all the horrors that accompany them should be made aware of their rights and the antics banks in general get away with. Hiding behind confidentiality clauses does nothing for the common good.

 

Please respond by return so that maybe, just maybe we can bring this sorry affair to a close.

 

I look forward to hearing from you

 

Kind regards

 

As I say, my apologies it's long but Thanks..A1

[mcuth]

Why don't you reply with a draft of your own (acceptable) Tomlin Order for their signature?

 

Cheers

Michael

[citizenB]

Crikey, I tripped over this thread in error. Rivetting read.

 

Go get em Sarah

[andrew1]

Sarah,

JC is right. The agreement is achieved by the offer of Part 36 terms and the acceptance of those terms with the terms representing the entirety of the agreement. At the moment of acceptance of the Part 36 offer the proceedings are stayed on the terms of the offer [CPR 36.11(2)] and on the basis the notice of acceptance is filed at court in accordance with the guidance given at CPR 36 PD 3.1 no further order is needed.

 

If notice of acceptance was not filed at court (and let's face it, CPR 36.9(1) does not say the offer must be filed at court contrary to the Practice Direction), then the purpose of the Tomlin Order is to give effect to the agreement by the embodiment of the agreed terms within the four corners of an order of the court.

 

The introduction of a new term or the adjustment of an already agreed term represents a departure from the agreement and may be resisted by an application to the court for an order staying the proceedings on the terms set out in the Part 36 Offer.

 

x20

 

The banks solicitors are being stubborn and will not budge on their Tomlin Order, despite me raising these issues of the Tomlin Order digressing from the original Part 36.

 

Post 78 is what I agreed in the part 36 and shown here in blue. The remainder of the sentence excludes any further issues being raised, but there were many they ignored.

 

"The Parties agree that the consideration set out above shall be in full and final settlement of the Defence dated 12 November 2007...... and of all claims between the above parties arising out of or in connection with the facts and matters in dispute in the proceedings whether or not such claims were expressly set out in the proceedings and whether or not such claims are known to, have been notified to, or are in the present contemplation of the above parties."

 

I have agreed with the bank to accept the write off of the further advance, they ignored other items which came up during our battle and now in their Tomlin Order which arrived 7 weeks after the P36 they want this all encompassing clause to stop me raising these other issues in the future. I said if they want the full clause included then they must recompense me for it - they refuse point blank and wish to take the next stage of a case management hearing in January. The management hearing was booked to 10-15 minutes on 2nd Jan, They now want that stayed and rebooked for 2 hrs at earliest date thereafter. I could just accept the Tomlin as is and leave it there, but I am unhappy about the change from the part 36 offer I accepted verbally. It states in CPR 36.9 (1) (1) A Part 36 offer is accepted by serving written notice of the acceptance on the offeror. Would I be best just writing and saying I accept the part 36 without this clause?

 

What would happen if I refused to allow the consent order, went for the 10-15 minute hearing, told the judge I'd accepted their Part 36 offer ( can I do that?) but refused to accept the Tomlin conditions without recompense?

 

Also, am I pushing my luck? The bank have agreed to write off a significantly sized loan - they wouldn't do that if they had the law on their side and are they just playing hard to get. I have to decide by 17th - tomorrow as that is when the court has to be advised.

Edited December 16, 2008 by andrew1
clarification.