Part 36 offers**W

[andrew1]

I have been told by solicitors for a finance company I am in negotiation with they will be making a Part 36 offer to settle in a few days time, but I know what they are going to offer as they told me. If I were to get a Part 36 offer of my own in for what I want and what I believe is reasonable before they get there's in what are the benefits or pitfalls?

[andrew1]

Further, the receipt of a Part 36 offer by a party about to make its own Part 36 Offer may cause that party to hold off from making that offer.

 

Which is precisely where the danger lies. So, it may be a far better ploy to continue with my personal dialogue and encourage them to go back and improve the offer before documenting it into a part36...sweet talking might be a better option, I have a very good relationship going with the solicitors believe it or not even though they are paid to sue me....Thank you for that...I'll mull this over during the afternoon and plan...

[andrew1]

x20 Thank you so much for this help I really do appreciate this.

 

 

 

Andrew1 - me sorry for for hogging your thread but you know what me like when me gets a bee in my bonnet :p

 

Not a problem elizabeth1, I'd like to encourage more Part 36 Offer questions and answers on this thread as it is quite interesting and a powerful tool used correctly.

 

Sarah

[andrew1]

Not now as the Part 36 rules have recently changed - there is no longer any need to reject a part 36 offer before making one yourself

 

So, given that situation, If I as defendant put in a part 36 offer to settle before the claimant and the claimant comes back with their own Part 36 don't we end up with the original situation of trying to negotiate a settlement and the P36 a waste of time? It seems that the benefits of getting in a part 36 offer are lost in that case.

[andrew1]

The discrepancy between the eventual amount awarded by the judge and the two Part 36 offers willeffect the amount of costs awarded and to which party. Its no loonger a case of winner take all so to speak

 

Okay, so I am told by phone pre-p36 from them that they had received instruction from the bank, although it's not been documented yet, as to what the company were going to offer me and tell me what that offer is and I say " it's not enough " I am then asked what I think a sensible offer might be and I answer xx which is a higher amount than they were thinking about, but less than my original claim. I then put my proposal on paper as a P36 and send it to them. Next day they formalise their own including this statement " 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. and it is preceded with this in the covering letter: I note that you have verbally rejected my client's recent offer. However, I attach a letter setting out my client's offer for completeness.

 

Now where does a situation like that leave us and how would it be best to proceed?

 

Sarah

[andrew1]

I would write back and say (if true) that you did not refuse their Part 36 you have merely forwarded them your Part 36 for them to consider. It will be whichever is closer to the final amount awarded who may benefit costs wise

 

Okay, if it is true, and the offer not 'verbally rejected' there is now, according to what has been said previously here, no one priority of offer either ours or there's other than ours being put in first. Which normally would be the one which is in fact applying the pressure to accept is it not?

 

If it were felt that the company - lets say - "did not have enough documentary substance" to take the case to court and it was a matter of who blinks first, how would one approach or be approached to find common ground as in if it were being negotiated around a table?

[andrew1]

Surfaceagentx20, you mentioned the files belonging to the client of a solicitor above thus:

 

The client in your example is entitled to physical possession of the solicitor's file and not limited to receiving what may or may not come up on a S.A.R - (Subject Access Request). Indeed, since a solicitor's file is largely paper based without manual retrival system in place, little of the file would be reveald on a SAR.

 

I have files with a firm which have now been contacted by a lender who has obtained files from those solicitors we used and wish to include these in their disclosure documents - Firstly, do they have a right to have these and secondly, in what manner do I approach these solicitors to obtain my files? In other words what on earth do I say to them to get them to release them, is it as a result of some legal Act or protocol I can quote at them to get them? The lender insisted upon advice being gained at the execution of the deal, but we instructed them. If they are to use them, no doubt they'll use the documents they choose, but if I can obtain the whole file then that's even better.

 

Thanks

 

Sarah

[andrew1]

You Sir/Madam, are one very special individual I rarely come across and have just made my day!

 

Thank you very much!

[andrew1]

I just had an interesting conversation with one of the firms of solicitors used at the time. He stated that it was normal practice in a loan transaction that the firm acted for both the bank and the client. I stress that one firm was engaged to provide independent advice to my partner and they had no involvement with either me or the funds. The other practice I have just spoken to were involved in disbursing some of the loan facility to 2nd charge and Caution holder - it is this one who has sent a full file to the banks solicitors and who feel they were acting for both the bank and ourselves. Does this seem correct?

 

 

This is the letter sent to the banks solicitors by one of the old partners of this firm, on headed paper from his new practice. It doesn't make me feel particularly comfortable:

 

“Your letter of the xxx 2008 has been passed to me as a former partner of xxx which firm closed on the xxx 2004. I have access to the old files in relation to that firm and I have now retrieved the above file from storage and this is attached.

 

This is enclosed on the basis that you hold the documents to my order since I have not taken duplicate copies of the whole file.

 

However, to assist, I have left a the front of the file a handwritten note (this is in my handwriting) dated xxx 2003 confirming that xxx signed the additional loan offer in my presence before he took it away to have it signed by his wife in the presence of an independent solicitor. A colleague of mine, xxx, actually dealt with the file but he was obviously not available at the time when the loan offer was signed by xxx

 

If I can be of further assistance please do not hesitate to contact me.

 

Please note that yyy is not a successor practice to xxx and I am writing to you in a personal capacity and not on behalf of the firm.

 

Yours faithfully,”

Further answers from this individual when questioned further revealed this comment too:

 

" The firm was retained by xxxBank to complete the further advance and also retained by you. There is invariably a dual retainer when acting for clients and mortgage lenders."

 

It all sounds a bit sitting on the fence to me. Perhaps I am mistaken in my belief as I paid the bill and retained the firm in the first place then I am the client?

 

I have asked him if in fact his firm then received a fee from the bank to which I have had no answer as yet. - Just had the answer - No just you!

 

Sarah

Edited September 25, 2008 by andrew1

[andrew1]

It is indeed common for a solicitor to act in certain circumstances for both lender and borrower. However, a solicitor should not act where a conflict of interest arises. Whether there was a conflict at the time I can not say. If it was considered necessary that a solicitor should be retained to give independent legal advice regarding a loan, that would suggest someone perceived a potential confict. In any event, evidently the solicitor acted for both borrower and lender at that time. Actually not quite, but nearly. This was a Further Advance transaction which was complex in it's make up clearing some personal and business debt and the loan company felt Mrs would need to be aware of the liabilities independently of the transaction itself, reflecting your assessment of a possible conflict. The remit of this firm was purely to advise on the loan content and its implications.

 

A second firm, retained according to you, for the purpose of distributing loan funds received, today claim it acted for both lender and borrower. Correct I do not see how that can be so if the firm referred to in the preceding paragraph handled the transaction for both lender and borrower and if the nature of the instructions was in relation to the disrtibution of the loan.

Evidently the loan business was transacted prior to 2004 since in that year the second firm closed. It was in May 2003 the loan distribution was being negotiated The file has come into the possession of either a third firm, not being a successor practice to the second firm, or a solicitor who is a former partner of the second firm and is now a partner of the third firm. correct

 

It is this solicitor who has released the file to the lender on the one hand saying he releases in his personal capacity, yet on the other writing on the third firm's note paper. In 2004 the relevant code (since changed - see below), was the 1999 Guide to the Professional Conduct of Solicitors, Rule 3.11 of which states:

 

'Where there has been a material alteration to the composition of a firm, all clients of the firm who may be affected must be informed promptly.'

 

The closure of a firm quite evidently is a 'material alteration.' Therefore, you should have been informed of the closure in writing and advised about any arrangements for the storage of your file after closure. Had you been informed you may have decided to ask for the file to be released to you.

 

In any event, for the lender to be entitled to any part of the file it will be necessary for there to be a retainer between that lender and the solicitor.( I have been informed there was not a fee received by this firm from the lender. All charges were for our account and paid by us, I take it by 'retainer' you specifically mean the passing of monies between the two parties rather than assuming an instruction has been considered a 'joint one'.) If there is no retainer, and there is at least a question in this area on what I am told, no right to the file arises.

 

If the lender did retain the solicitor, below is a quote from the Guidance Notes to Rule 4, entitled 'Confidentiality and disclosure' appearing in the Annex to the current code, The Solicitors Code of Conduct 2007.

 

Where a lender asks for a conveyancing file and you have kept a

joint file for both borrower and lender clients, you cannot, without

the consent of the borrower, send the whole file to the lender,

unless the lender can show to your satisfaction that there is a

prima facie case of fraud. If the client does not consent, you

should send only those parts of the file which relate to work done

for the lender.

 

If the solicitor has released the entire file, in my opinion, he has breached Rule 4. I have been informed by this solicitor that the whole file has been forwarded and without any reference to us

 

A pdf of the code can be obtained here.

 

x20

Thank you this is most informative. Might I ask what remedies might be available to us now?

[andrew1]

This gets more bizaar as things progress and I'm not too sure how to proceed with this.

 

I was in a position of some strength in my claim against the bank, no answers to most of my claim have been forthcoming and their solicitors had submitted disclosure documents and a case hearing due early October. Unbeknown to me, around mid August the banks solicitors wrote to the solicitors I had engaged to effect the disbursements of funds (and as would be normal, to ensure clean transactions and to clear 2nd charges etc to ensure clear title as dictated in the loan agreement document conditions) to request the file held by the practice with regard to this transaction. Apart from the letters of which I was sent copy of at the time in 2003 relating to the transactions, I have no idea what else was within that file.

 

As mentioned above, that practice has 'changed' it no longer calls it self the name it was in 2003, but the phone number is still answered by a firm of solicitors. I called to find out what had actually been sent as I knew nothing of this request, nobody other than a temp was there so I left a message to call me. One of the partners listed on the headed paper in 2003 telephoned me but he stated he no longer worked there but had his own practice and retained the files of the old practice of which mine were one.

 

He acknowledged receipt of the letter from my banks solicitors, forwarded no doubt by the other old practice at that address and confirmed to me that he had forward the WHOLE file (uncleansed of my legally privileged documents) which had to be returned and held 'to his order'.

 

I then received advise from my banks solicitors that as a result of their findings in these files they were changing their disclosure documents and their whole stance changed in relation to my negotiating position this is what they wrote:

 

"Our client has recently made enquiries of the completing solicitors Firm A and Firm B in an attempt to obtain further information regarding this matter. As a result of these enquiries, we have received a file from the completing solicitors,(firm A) in relation to the further advance paid in xxx 2003. We are preparing a supplemental disclosure list in respect of the contents of this file and will forward the same shortly.

 

In light of this, we propose the following directions:

 

1. The hearing on xx October 2008 is vacated

2. Our client to provide supplemental disclosure of the file received from the completing solicitors on or before xx October 2008

3. The proceedings be adjourned for 2 months to allow the parties to attend a mediation

4. Our client to inform the Court of the result of the mediation on or before xx December 2008 and to file suggested directions, to be agreed with you if possible

5. The matter be listed for a case management conference on the first available date after xx December 2008."

 

Now, yesterday was to be the third time Witness Statements were to be exchanged and due to their non response to our defence we had been requested to extend the dates, the hearing had also been put forward once at their request. But this has been going on since Feb 08 with this firm employed by the bank and they had come up with nothing to this date of any substance in defence. It may have been because they were awaiting these files, but never the less at this moment in time I had submitted my own Part 36 offer before their one arrived which sought a larger settlement figure than they were previously suggesting and they may well have been about to settle upon my Part 36 amount or thereabouts - I'll never know now.

I was confident there was nothing which could have changed their argument in these files anyway, but it certainly changed their attitude.

 

With the above now in play, I contacted the banks solicitors and asked if they would approachable for an 'off the record' discussion Without Prejudice' to see if we could clear the air ( negotiations had been difficult as they would/couldn't answer any of my counter- claim) and see if we could find common ground with which to conclude this without necessity of mediation and court - we weren't that far apart and I had a very strong position.

 

During that call ( and it's not quite finalised yet so I have to be careful) a proposal was discussed , agreed and deemed acceptable between us and the bank will be asked their opinion by their solicitors for approval. Fine, BUT.....the negotiating position had had to be changed as it altered the balance as I did not know what was in the files, although they were going to disclose them, and it appeared they completely changed their attitude to progressing with both mediation and pushing for a case management conference. None of this bravado had been evident previously and in their own Part 36 believe me, they would not have offered what they did had they the slightest glimmer of a case.

 

I now feel that this fellow, who, according to his letter to the banks solicitors accompanying my file ( he has now sent me an emailed copy of the letter since my phone call and email confirmed he sent the whole file and removed nothing) acting as he says 'in a private capacity' despite writing on his firms letterhead, is responsible for this change in both parties negotiating position weakening mine and strengthening the banks, although as yet I don't know what they had, it was the psychological effect it had on the negotiation. Lets face it, it's the psychology in negotiating deals which wins or loses a case, sometimes facts don't count, like poker it's who blinks first.

 

I have agreed that I would accept the figure I discussed with the banks solicitor if the bank agrees, but I will never know if I would have received my Part 36 amount which was substantially higher.

 

Have I got good cause to raise some kind of action against this fellow? Quite in what capacity I'm not sure because he is stating his 'personal capacity'.

 

x20 you have pointed me to the rules and regs of the solicitors conduct and pointed out that the file should have been cleansed..can you give me any idea of my position in this as I feel I lost my bargaining power during this negotiation conversation? I'd really appreciate your opinion.

 

Thank you.

[andrew1]

x20, when I saw your reply my chin dropped. I can't thank you enough. This gives me the direction I needed. I have spoken with the Solicitors Regulatory Authority today and they have asked me to submit my documents for their inspection, I may also be able to enlist the assistance of the banks solicitor as you suggest once the proposed deal we discussed has been finalised as despite our opposing roles our relationship has been cordial. However, I was expecting to hear Friday or today whether this discussion and figure will approved and accepted by the bank. That hasn't materialised yet, although with what is going on in the banking world today I am not totally surprised. However, during their last 'vacant' period they were plotting so I am not holding my breath.

 

The Part 36 offer I made was sent with the knowledge of what they were to include in their own as I had been advised on the telephone what it contained, mine arrived first, their one was sent a couple of days later in the format they had discussed 'as a matter of completeness', but there had been no mention of changing disclosure documents as they had at that time not received the aforementioned file. To be honest, the arrangement or 'advice' which would be deemed 'private' or on file would have been scant to say the least as I hadn't sought advice other than a short discussion about one of the transaction amounts at the time, but none the less the banks solicitors have 'waived the file in the air' and said " lookie here, we have the file and are changing our position" using it at this precise moment to wrong foot me and it worked to a degree making me settle for less and unsettling my will of steel, so what you have written here has given me the momentum to progress. You will not have noticed much of the work I have done in the Cabot Fan Club (a small group of people who have wrought havoc and considerable change to Debt Collection Agencies, Cabot being one) over the past two years on this forum and beyond, but those who have and for which I have gained all my little green pips in rep points, would no doubt confirm that with the tools I have now been provided with by you, no stone will remain unturned until I have wrung this one dry.

 

My sincerest thanks to you. I do not know from where you have sprung, but I trust you won't mind me embarrassing you a little by saying you are a real asset to this forum and a considerable booster to thousands of people's confidences, which is what this forum is all about and makes it what it is.

 

[andrew1]

Another twist. I have been supplied with the new disclosure documents including some of these documents from this file obtained from the solicitor, one of which is a letter from the bank to firm A which, is dated the same date of the enhanced final offer of the further advance some 2 months after my initial vist to the solicitors in question. It reads:

 

 

"We have agreed to advance an additional £xxxx to Mr xx and Mrs xxxx

We shall be grateful if you will act for xx bank concerning this additional loan, protecting our interests and undertaking that the offer conditions of our additional advance mortgage offer dated xx xxxx 2003 have been complied with or will be complied with on or before completion of the advance.

The offer may contain conditions asking you to check specific points which have come to our attention or which may be of particular concern to us, Any such conditions do not limit your responsibilities to us under the general law as a solicitor or licensed conveyancer acting for us.

We enclose:

1. Copy additional loan offer

2. xxx bank mortgage conditions

Yours faithfully"

 

 

How does that affect the file situation the banks solicitors have now received? - the file and their disclosure documents still contain private and privileged documents which should have been cleansed though. I have informed the banks solicitors that I intend to issue an injunction should they not make a suitable offer, return the file or destroy any copies. I'm hoping that will kick them into action.

[andrew1]

This is not a letter which would attract for your benefit, legal professional privilege. It is an invitation to act for the bank. An invitation which was evidently taken up in circumstances where perhaps the firm ought not to have done, owing to conflict of interest considerations.

 

I do not read the letter as affecting any of my earlier opinions regarding confidentiality and the admissability of documents disclosed in breach of confidence.

 

x20

 

Thank you x20

[andrew1]

Hallo again,

 

During a without prejudice telephone conversation with the banks solicitor we discussed the possible financial remedy which pitched the settlement halfway between their Part 36 and mine. Seemed satisfactory to me but needed approval from the bank. A following conversation suggested this figure may be rejected as it was too high but no other was put forward and I was told it may take 2 weeks to get a response. Conveniently for them having rejected officially now my own part 36, their Part 36 offer expires 13th Oct and is still open to me, after which we are talking big costs if I get the wrong judge on the day, (and it is a distinct possibility given others experiences of District Judges understanding complex CCA issues which mine is). This leaves options open, 1) I just accept their offer which is far less than I had felt reasonable and one which would have been a significant amount higher had this client file or ours not been released by this solicitors firm. 2) Apply for an injunction to stop the use of the file and brazen it out ( I have written as previously suggested x20 to the solicitor who released it) or I accept the part 36 offer or any other the bank suggests in full and final and sue this solicitor for what may have been settled if I can extract that from the banks solicitors once all this has been finalised.

 

I have now signed a consent order that vacated the hearing for today adjourning proceedings for 2 months to allow the parties to attend a mediation the result of which would be put before the court before 12th December along with suggestions for directions, thereafter listed for a case management conference 1st available date after 12th which will be way into the new year taking this case over a year. By this time the part 36 offer will be well and truly expired. Not quite sure what to do.

 

I have spoken with the solicitors regulatory Authority and they have asked me to submit a file and complaint, but as yet the losses will not be known. It could end up as a win -win for me and the bank and the solicitor who disclosed this file bridging the gap - does that make any sense x20 and am I heading in the right direction do you think?

 

Thank you.

[andrew1]

With them having rejected your original Part 36 offer, can't you make a new one along these lines?

 

Cheers

Michael

 

Didn't realise I could - can I? - the other thing thinking about it, would be that their one would have expired so I was already vulnerable for costs, more so than now or if I accept this offer of theirs.

Edited October 3, 2008 by andrew1
added a bit

[andrew1]

One last point, If a part 36 offer expires on a date, say the 10th at what time of day is it possible to say yes or no to accepting the offer, close of business 5pm or does the offer have to be in before the 10th ie the 9th.?

 

I'm thinking I have such a strong hand anyway I might just go through the process of mediation and a hearing because quite honestly all this faffing around is pointless when my case is so strong.

[andrew1]

Thier Part 36 was sent by email on 18th September, counting weekends 21 days ends on Wednesday the 8th, it states:

 

" This offer will remain open for acceptence 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"

 

However, a subsequent letter states:

 

" We remind you that our client's Offer made on the 18th September remains open for acceptance until 13th October 2008" After this time days (actual wording) you may only accept the offer if we agree the liability for costs or the Court gives permission"

 

So which one do I go by do you think? I have to make sure I get this right if I decide to act one way or another.

 

Also, If I put another part 36 offer in that takes the 21 days way past this one, so surely this offer they made will have expired, if I put one in how does this work when it comes to costs?

[andrew1]

removed - by andrew1 will report back when completed

Edited October 6, 2008 by andrew1
MIB's

[andrew1]

I can supply those x20 and tried to pm you once, but you are a popular chap and box was full a few times. For obvious reasons I'd prefer not to post on open forum.

[andrew1]

I am out now for an hour or two, will come back later. Thanks x20. Very much appreciated.

[andrew1]

They have to give you 21 days to consider any such offer

 

.....but what happens if the 21 days is up on Wednesday and I slip in another one?

 

 

Got your PM and whoa, you could be out until a week next Tuesday and I'd still be unsure I'd have the definitive answer![/I]

 

Edited by andrew1

 

You'll understand when I say I'll need to absorb all this a bite size at a time.

 

If you need anymore x20, just ask...

Edited October 6, 2008 by andrew1
MIB's in a poker game!

[andrew1]

Thank you everyone, I have just accepted the banks Part 36 offer which is a success in itself, not what I had hoped for but a sizable chunk off my mortgage rather than a repossession. 1 yr of worry and negotiation over, and a victory whichever way we look at it. so a BIG thank you:p

 

Next follow-up though is on Legally privileged files.

 

Perhaps one of the legal people could tell me this please. I may require the bank and their solicitors support, as x20 suggested I might, in quantifying any losses I might have made as a result of settling this having had the goalposts moved by the solicitor who acted for me in 2003 who sent in my complete client file to this claimant without removing my own legally privileged documentation, notes and letters. The banks stance changed after they received it and negotiation stopped dead and they fell back to their original P36 offer which I have now accepted. However, I asked the Claimants solicitor if they would provide this support and she said it was unlikely they would divulge theirs or their clients legally privileged files. Bit of a joke when they used mine, but hey ho that's what happens. Now if I am to sue this old solicitor for releasing my files is there any way I can obtain these legally privileged files from the bank and their solicitor using the law? I could then apply for them and can then find out the real game plan of the bank and how things changed.

 

Finally, a big thank you to all thus far, today has released a big weight off my mind.

 

Another Cabot Fan Club and CAG success 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?

 

 

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Edited November 25, 2008 by andrew1
added last question

[andrew1]

Bump