Part 36 offers**W

[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.

[elizabeth1]

x20 - I wrote to these solicitors and just put a couple of questions to them while I was awaiting the delivery of these files - I asked about why they'd not taken "costs" from the otherside and why my sons money had not been settled before a judge for approval etc.. and she wrote back the two following replies.

 

Now there were 4 elements of these claims and each part was settled prior to my sons 18th Birthday - it was only the last part of which was settled around his 18th Birthday (others parts were settled some months before). From the replies below - can you tell me whether this is all correct please? I am baffled as she tells me it's all correct.

 

 

 

reply about money taken from our awards won

 

 

Dear Mrs xxxx,

 

Thank you for your e mail of the 8th of October 2008, addressed to xxxxx of our offices.

 

I appreciate your concerns in relation to the shortfall in legal costs deducted from your families damages. In your case it was not possible to determine exactly what the costs were at the time of settlement because there were still cases ongoing and there was an element of work whcih was undertaken on a generic basis for the benefit of the group as a whole. Therefore it was not possible to serve a bill of costs until all of the claims had concluded.

 

The general rule in English Law is that the Defendant will pay the majority of your legal costs however there is always a shortfall between the amount of costs and the actual recovery from the Defendant. There are some costs which are not recoverable from the Defendant and these are deemed to be Solicitor client costs. A sum has therefore been deducted from your damages to take this into account in accordance with the terms of your Conditional Fee Agreement and as you were advised at the start of your claim. The actual shortfall in legal costs is likely to be greater than the amount deducted from your damages, however I will not be seeking to recover any additional sums from you or your family.

 

In respect of your queries in relation to your son's claim whilst I will seek to assist as much as I can as xxxxxx has now reached the age of 18 any queries in relation to his instructions after he reached the age of 18 are confidential and will need to be addressed with xxxx directly unless he signs a form of authority agreeing to us discussing matters with you. Upon receipt of a signed form of authority I would be more than happy to discuss this with you.

 

If you have any additional queries please do not hesitate to contact me directly.

 

Then after sending the form of Authoity the following relating to my son's money/settlement - reply about my sons claim/money.

 

Dear Mrs xxx

 

Thank you for returning your son's completed form of authority.

 

In respect of your queries in relation to the conclusion of your son's claim. The purpose of an infant approval is to protect the rights of children under the 18 and to allow the Court to make investment directions to ensure that any funds are properly invested. This was not appropriate in your son's case as an application for an infant approval hearing can only be made once proceedings have been issued and secondly is only appropriate where the person concerned is under the age of 18.

 

Although your son was under the age of 18 at the time we took your instructions to accept the offer on his behalf he reached the age of 18 shortly afterwards and therefore we took instructions directly from your son and received a form of authority confirming his instructions to accept the offer and therefore this was concluded without the need for an Infant Approval Hearing.

 

I trust this deals with your query and if you require any additional information please do not hesitate to contact me directly.

 

Kind Regards

Edited October 24, 2008 by elizabeth1

[JonCris]

1st ALL infant offers should be approved by a court whether issued or not.

 

2nd what solicitor costs? Its correct that a solicitor will incur some costs by having to investigate to establish any chance of winning BEFORE entering into a CFA but once entered into the CFA is retrospective in the matter of costs. Also it's normal practice to accept an offer 'subject to costs being assessed if not agreed', so I still not clear what they are claiming

[elizabeth1]

1st ALL infant offers should be approved by a court whether issued or not.

Is there any legislation that points to this that I can write back and quote to this woman? She is firmly telling me I am wrong in her reply to me so I'd like to go back and show where I get this idea from =which regs

 

2nd what solicitor costs? Its correct that a solicitor will incur some costs by having to investigate to establish any chance of winning BEFORE entering into a CFA but once entered into the CFA is retrospective in the matter of costs. Also it's normal practice to accept an offer 'subject to costs being assessed if not agreed', so I still not clear what they are claiming I will go back and ask for these costs etc.. I am assuming it's towards stuff like Barrister advice, medical reports etc.. which ever was applicable throughout the case/claim history etc.. but these were costs apparent/known by these solicitors prior to settling the cases

 

I shall write to them and ask what costs we were charged for etc..

[JonCris]

No stats it's required because of case law

 

ALL costs & disbursements med, barrister, etc are recoverable from the losing party

 

Ask her to identify precisely which costs you have paid

[surfaceagentx20]

Elizabeth,

As to the approval of child settlements, it is a requirement that they be approved by the court regardless of whether the settlement was achieved in the course of or without commencing proceedings. The purpose of the court's approval is to remove the risk that the child, who is incapable of approving the settlement, might subsequently conclude that his/her claim had been under-settled and bring proceedings against his litigation friend for negligence. [see CPR PD 21].

 

However, if the child attains his/her majority before settlement is achieved, the requirement that the child should proceed by litigation friend is removed for the child has become of full age and entitled to continue with the claim as an adult in full control of its destiny, to include discontinuing the claim as he or she chooses.

 

As I understand this case, your son achieved his majority prior to the settlement of his claim. If this was so, court approval was unnecessary for the decision to settle was your son's alone.

 

As for conditional fee agreements (CFAs) interpretation will require an examination of the terms and conditions within the CFA, not least the definition of a 'win' and additionally whether the CFA is subject to the Conditional Fee Agreements Regulations 2000 or Conditional Fee Agreements Regulations 2005, the latter coming into effect on 1 November 2005.

 

Ordinarily, a CFA will involve an arrangement for a fee increase (success fee) for the solicitor in the event of a win which fee is determined by reference to the client's prospects of success and corresponding degree of risk taken on by the solicitor in working on a CFA. Notice of the existence of an agreement providing for a fee uplift must be given to the opponent at the earliest opportunity.

 

Your son was evidently successful in his claim and I would have thought therefore that with the additional benefits of the success fee, the solicitor would have been adequately remunerated. Yet it would appear the solicitor proceeded to recoup certain costs from your son's damages.

 

In addition to having a copy of the CFA available to examine, it would be very helpful to know what was comprised within the figure for costs deducted, distinguishing between solicitor profit costs, counsel's fees, fees to experts and other disbursements and what notice of intention to deduct from damages and with what explanation or reasoning was given by the solicitor to your son. With that I would hope to be able to assist further.

 

x20

[elizabeth1]

Elizabeth,

As to the approval of child settlements, it is a requirement that they be approved by the court regardless of whether the settlement was achieved in the course of or without commencing proceedings. The purpose of the court's approval is to remove the risk that the child, who is incapable of approving the settlement, might subsequently conclude that his/her claim had been under-settled and bring proceedings against his litigation friend for negligence. [see CPR PD 21]. There were 4 different parts/elements to these claims 1)special Damages, 2)loss of enjoyment (settled July 2006), 3) Pain, Suffering & Loss of Amenity, 4) Demunition in value of holiday(settled Nov 2006) - parts 1&3 were settled approaching my sons 18th Birthday Aug 2007 for him solicitors loitered to make sure he turned 18. The solicitors kept the earlier settlements - and deducted roughly 20% from these parts (as they also did with rest of my family claims as each part was settled)

 

However, if the child attains his/her majority before settlement is achieved, the requirement that the child should proceed by litigation friend is removed for the child has become of full age and entitled to continue with the claim as an adult in full control of its destiny, to include discontinuing the claim as he or she chooses. I acted and agreed settlement on behalf of my son on the earlier parts of claim as he was not 18 - should these earlier elements have been subject to infancy hearings etc..

 

As I understand this case, your son achieved his majority prior to the settlement of his claim. If this was so, court approval was unnecessary for the decision to settle was your son's alone. My son didn't reach majority till the very end of his claim - some parts had been settled almost a year before his 18th Birthday.

 

As for conditional fee agreements (CFAs) interpretation will require an examination of the terms and conditions within the CFA, not least the definition of a 'win' and additionally whether the CFA is subject to the Conditional Fee Agreements Regulations 2000 or Conditional Fee Agreements Regulations 2005, the latter coming into effect on 1 November 2005. The CFA would have run from April 2005 as that's the date of the letter I have that contained this CFA

 

Ordinarily, a CFA will involve an arrangement for a fee increase (success fee) for the solicitor in the event of a win which fee is determined by reference to the client's prospects of success and corresponding degree of risk taken on by the solicitor in working on a CFA. Notice of the existence of an agreement providing for a fee uplift must be given to the opponent at the earliest opportunity. Sorry I don't understand this part.

 

Your son was evidently successful in his claim and I would have thought therefore that with the additional benefits of the success fee, the solicitor would have been adequately remunerated. Yet it would appear the solicitor proceeded to recoup certain costs from your son's damages. It says on this CFA The Success fee is set at a) 80% of the basic charges, assuming liability and causation are admitted by the opponent within the protocol period. b) 100% if the case settles thereafter. With this despite some elements of claims being settled earlier than others (as above) the solicitors took 20% off each award won. Other pages show this was medium risk assessed all through a tick box summary. Then it says under a heading "Your legal costs if you win" It is a principle of English Law that "costs follow the event". In practical terms this means that the loser pays the winners reasonable legal costs. Therefore, if you win your case you can expect the court to Order that the Defendant will pay your legal costs, including the success fee and insurance premium, provided they are reasonable. If payment is not made we can take enforcement proceedings on your behalf to recover those costs. If there is a shortfall in recovery of any legal costs, that remains your responsibility to pay the shortfall. SO IT SEEMS to me solicitors are taking a "success fee" of 20% because cases were settled prior to litigation.

 

In addition to having a copy of the CFA available to examine, it would be very helpful to know what was comprised within the figure for costs deducted, distinguishing between solicitor profit costs, counsel's fees, fees to experts and other disbursements and what notice of intention to deduct from damages and with what explanation or reasoning was given by the solicitor to your son. With that I would hope to be able to assist further. No explanation was ever discussed with my son with these solicitors - solicitors dealt with ME throughout as my son never reached 18 till the very end of these claims - then he just got a form in post "sign here" to allow him to settle in full at the end - solicitor never took time to speak to my son about it = all very

 

x20

 

 

I am going to write and ask for a full breakdown of these costs and the success fee as in what it covered etc.. cause I am completely baffled as to how we won this and these solicitors never took costs from opponents etc.. I can see in the letters in the files I got off them that they arranged a huge 5 figure sum fee off the opponents - so I'm naturally curious as to why they took 20% off each of us from every element of claims.

 

Thanks so much for your help here.

Lizzy

[elizabeth1]

Hiya x20 & joncris,

I thought I'd let you know where I am up to with this Personal Injury stuff today. It turned out this Paralegal off loaded me to her superior rather than discuss these costs with me etc.. he did speak to me on telephone Friday last week.

 

I asked him why money was taken from our compensation awards for costs and why the defendants never paid all of our costs etc.. when we'd won our cases etc.. The reply I got was basically it says so in the CFA that they'll take some proportion and we signed it agreeing and so they've taken it (end of story type of attitude)

 

So then I asked why defendants were not charged these costs - and the man tells me they can't get everything off defendants so they took our award money for shortfalls etc..

 

I then asked "which" costs/shortfalls did the money they took off us go towards and he didn't reply he merely told me they take a proportion off everyones compensation award no matter what the case is (so it looks like it's 20% ish off all the claims they deal with that they do this to) he did not say exactly which parts of the costs were not charged to the defendants.

 

I then asked for a breakdown of the costs that we paid towards and he has sent me a breakdown of the "whole costs" for the whole group claim (the other family that travelled to same place before our trip too was included in the grand total) BUT there was individual costs drafts for each of my family members but nothing showing what we paid towards as individuals.

It's all very weird how it's been done and explained to me the basic drift of their letter today and the phone conversation is they took the money cause it was written in the CFA for "overall costs" = nothing in particular.

 

I was told that this case was never sent to court as a filed case HOWEVER amongst some of the info I got today there is a page with a court case reference number on it relating to Birmingham CC so I shall write to B'ham court with the reference number and ask nicely for a copy of that claim that it represents etc.. cause I certainly never seen court docs before throughout all of this so I am interested as to what that's about.

 

I am curious as to whether there is any legislation that might show this company ought not to take money from awards won etc.. Cause I'd certainly write and suggest a mistake had been made etc.. (politely) to give them opportunity to put this right etc..

 

I did try suggest to this solicitor that maybe a mistake had happened with these awards etc.. and the guy said to me confidently "we do this to everyone it's no mistake - we don't do mistakes" so I got absolutely nowhere for my efforts.? It boils down to they wrote this into the CFA's and they took the money cause we agreed.

 

The reply regarding my sons case/claim having not gone before a judge prior to settlement is as per my post 52 in this thread (above) - I am at a loss now as to what to reply to all this. How do I question what legislation they used for taking this money off us etc.. surely there should be some legal provision if they've done this that shows they were right to do so?

 

I'm just wondering what to try do now??

[tomterm8]

. 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.

 

Simply put, they can probably be required to disclose the fact your solictor sent them privileged documents, but there is no way you would be able to obtain their own legally privileged documents (i.e. game plans, soliciters advice etc) short of a criminal investigation.

[JonCris]

Have PM'd you Until you send the docs, particularly the agreement, to either of us we can't really advise

[Goldlady]

Elizabeth1 you mentioned in an earlier post about interest on the money. Who held onto the money until it was released? There are rules about interest which, if it was held by the solicitor, I can give you a link to.

[elizabeth1]

Have PM'd you Until you send the docs, particularly the agreement, to either of us we can't really advise

 

 

Thank you

[elizabeth1]

Elizabeth1 you mentioned in an earlier post about interest on the money. Who held onto the money until it was released? There are rules about interest which, if it was held by the solicitor, I can give you a link to.

 

 

It looks like the solicitors held onto this money - cause in my sons files I can't see any correspondence where they've later requested release of his payments from defendants etc.. - I am sure it's reasonable to assume that's where his money was?

 

I will ask this question when I go back to them with my reply to this stuff - cause I am sure either way my son was entitled to some interest?

 

thank you

 

I'm feeling the more I look at this the more questions I have - and although one of the Dept senior solicitors spoke to me last week I could tell when he spoke to me he was actually reading the CFA out to me over the phone (he was scripted) so it may have been a bid to brow beat me and baffle me over the telephone? It was like "you signed this it said xxxx" so we took money off you. Mmmm!!!

[JonCris]

Elizabeth will get back later tommorrow

[elizabeth1]

Elizabeth will get back later tommorrow

 

Thank you very much.

[Goldlady]

Page 36 of this tells you about how and when interest needs to be paid.

 

http://www.sra.org.uk/documents/rules/Solicitors-Accounts-Rules-July-08.pdf

[elizabeth1]

Page 36 of this tells you about how and when interest needs to be paid.

 

http://www.sra.org.uk/documents/rules/Solicitors-Accounts-Rules-July-08.pdf

 

 

Thank you so much - I shall go have a read of that now

[elizabeth1]

JonCris can you empty your PM box please??

[JonCris]

Done:)

[surfaceagentx20]

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

[Goldlady]

I think that is right too surfaceagent. Solicitors have to be careful with success fees these days. I am waiting to see what happens regarding our costs as we are in same situation with a part 36 as I think I said above.

[JonCris]

Surfaceagent having seen the CFA I concur with your opinion.

 

This CFA is a standard Law Society approved document I also agree it's customary for the winning party to either issue costs only proceedings or more likely negotiate a settlement of costs. If there is a reduction agreed between parties without the consent of the client (which is usual) then any reduction is to the liability of solicitor & not the client.

 

I have to say that on the basis of what I have seen I'm very surprised that a firm such as these should make such a fundamental & serious mistake which may have unwanted consequences

[elizabeth1]

I am replying in red below to this

 

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. they never insured these claims

 

[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 we were never involved in this process solicitors told us to agree or fund the case ourselves and they asked for a huge chunk up front to continue if we wanted to fight cases further - so we had no alternative but to settle as we had no money to pay upfront.

 

[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. court was never involved at any stage - not even with my sons claim as a minor.

 

[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. That is correct 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. this is correct there were no costs proceedings 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. So does this mean solicitors should have recovered costs from the other side? So do I write and ask solicitors for a refund of what they took from us? How do I politely word this without ruffling feathers?

 

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

 

x20

SHOULD THIS COMPANY BE USING SUCH CFA AGREEMENTS AND SETTLING CASES LIKE THIS by taking money off claimants who win? I can see within these files where solicitors are negotiating their fees etc.. (which I must say are a huge sum compared to the compensation awards the claimants settle for under these part 36 settlements)

I have looked at loads of solicitors firms who do these personal injury claims and I haven't seen any others who take chunks of money off winning party etc.. these other companies all promise winners get 100% of compensation won etc..

[surfaceagentx20]

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

[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 would be very grateful if you could draft a letter for me to use.

Thank you so much for this help.

 

 

I am sat here trying to do this and am getting myself so tangled up LOL

 

I just know what I send these people has to be right - they are sure going to try baffle me over this stuff.