Lloyds claimform - OH's credit-token, Lloyds Asset Card.Here we go again

[AndyOrch]

Ok Shirei I have that.

 

Dont post for now we have a guest.

 

 

Andy

[AndyOrch]

Hi Shirei can you post their letter and a ball park fig of your CC also just remind me what track we are dealing with here, then delete.

 

Andy

[shirei12]

Hi Andy,

[AndyOrch]

Thanks Shirei

 

 

Get back to shortly

 

 

Andy

[AndyOrch]

Ok Shirei

 

That is a good offer, the bit about Part 36 be carefull, never the less you get everything you want,costs will be dropped no CCJ and you can make payment by installments if desired.

If you still feel that they cant be trusted you may request the offer be made vis a vis a Tomlin Order which would give you protection and neither party could renege on the agreement.

Whether they would be prepared to disclose their offer within a Tomlin is something you would have to sound out but further clarification will have to be sought anyway if you intended to settle via a payment installment.

If you dont fancy the hassle of Trial then IMHO the offer is good and concludes the matter for you before Xmas.Dont consider that you have thrown in the towel because on reflection they dont wish to proceed to trial either.

Choice is yours.

 

Regards

 

Andy;)

Edited December 8, 2009 by Andyorch

[shirei12]

Okay Andy,

Yes I know it is a good offer,which we are going to accept,the only thing that troubled us was the costs. I need to write to them for clarification on payments (can they still add interest Andy?)

Another thing thats concerning me is the CC that is due,if I dont produce one by the 11th.can the Judge rule in their favour How do I deal with that?

 

Hello Guest

 

Shirei

[AndyOrch]

Okay Andy,

Yes I know it is a good offer,which we are going to accept,the only thing that troubled us was the costs. I need to write to them for clarification on payments (can they still add interest Andy?) No you will insisit that within your acceptance as F/F/S

Another thing thats concerning me is the CC that is due,if I dont produce one by the 11th.can the Judge rule in their favour How do I deal with that? Inform the Court that you are reaching an agreement and dont propose to submit your CC. Seek clarification from your County Court

 

Hello Guest

 

Shirei

 

 

Andy

[shirei12]

Hi Andy,

I have spoken with CC and just need to send a letter explaining whats happening.

In the Part 36 acceptance letter should there be any legal content and can I include my terms ie. proposed payments,no interest and costs?

 

Regards

Shirei

[AndyOrch]

Ok have a read and digest:-

 

Part 36 of the Civil Procedure Rules (CPR) sets out a formal way to conduct negotiations in order to settle a claim before it reaches court. Of course, a party can make an offer to settle in any way they see fit, but Part 36 offers are treated as ‘without prejudice as to costs’. This means that any Part 36 offers cannot be communicated to the trial judge until after the outcome of the case has been decided, and only the issues of costs remains.

 

Part 36 offers can be made at any time, and are easily recognisable. This is because they must be in writing, and state on them that they intend to comply with Part 36 of the CPR. It will have a deadline by which it must be accepted, which must be at least 21 days, and this is known as the ‘relevant period’. More than one Part 36 offer can be made, but if a party wants to change their offer within the 21 day period, they will need the court’s permission.

 

If a party decides to accept the Part 36 offer within the relevant period, they need to put this in writing to the other party. This is then binding on both parties. Unless otherwise agreed, any monies need to be paid within 14 days of the date of the acceptance. When the defendant accepts the claimant’s Part 36 offer, the claimant can claim their costs of the proceedings up to the date that the offer was accepted, unless the offer states otherwise.

 

If the Part 36 offer is rejected, and the case goes to court – what then happens? As previously mentioned, the judge cannot know about the offer until after the judgement, however, it can have a bearing on the costs. If the claimant wins and is awarded more than the Part 36 offer, the claimant can claim interest on the damages, plus costs from the end of the relevant period, and interest on those costs.

 

As we have seen before, costs can end up being pretty hefty after a court case, particularly after interest has been added on. The courts can take a dim view on guilty parties who simply ‘want their day in court’ rather than settling outside of court, which saves both time and money. The legal system encourages Part 36 offers as they make ending up in court the absolute last case scenario.

 

Back shortly

[AndyOrch]

You must be very careful with Part 36 offers partic from the Claimant if it does proceed to trial and you lose then you will be liable for a great deal of the Claimants costs.

 

What is a Part 36 Offer?

 

A party to litigation i.e. a civil dispute or a business dispute which is before the Courts in the UK, that party, whether a claimant or defendant may make a Part 36 Offer under the Civil Procedure Rules (“CPR”) to apply pressure to the other party to settle the dispute early than what otherwise might be the case. A Part 36 Offer is made by one a party to settle the litigation before a hearing and decision by a judge.

Thus, a Part 36 Offer may result in a court dispute settling at an earlier stage which often benefits one or even all parties to the dispute, and provides a tool for the weaker party in litigation to apply pressure to their adversary. Such offers must be in writing and structured in the manner prescribed by Part 36 of the CPR.

 

Why Make a Part 36 Offer in the Course of Litigation?

 

 

For parties to litigation, there are various reasons to consider making a Part 36 settlement offer. For example:

• A strategic and well structured Part 36 Offer may mean that the parties more quickly obtain a satisfactory result in the litigation.
  

• A Part 36 Offer places pressure on the other party to the litigation (the party to whom the offer is made) to seriously consider the strength of their case, whether they are prepared to settle, or whether they are prepared to risk a costs penalty if the matter goes to hearing and they do not ultimately do better than the offer put to them. For example, if a Claimant with a strong claim makes a Part 36 Offer to a Defendant to settle for 85% of the total claim, a pragmatic Defendant may jump at the chance to settle on this basis in view of the risk that if the claim was heard by a Judge an order would be made for payment of the full amount of the claim.
  

• Parties are highly likely to save legal costs in the longer term through a quicker settlement of the litigation.
  

• Exploring settlement prior to hearing can often be advantageous to both parties. At this stage parties can still negotiate towards a compromise suited to their commercial needs, rather than have an “all or nothing” result imposed on them by the Judge or decision maker at a final hearing.
  

The effectiveness of a Part 36 Offer lies in its ability to place pressure on the party receiving the offer who will know that, if they do not accept your Part 36 offer and fail to beat your Part 36 offer at the hearing, the Court is likely to order that they make a considerably larger contribution to your legal costs than they would otherwise have had to make.

 

[AndyOrch]

Example response Edit to suit

Without Prejudice Save as to Costs

 

 

Re OFFER MADE PURSUANT TO PART 36 OF THE CIVIL PROCEDURE RULES

 

 

 

Dear Sirs /Madam

 

Thankyou for the above letter of xx Dec 2009 of which the contents are noted. In response,the following proposals are put forward in the interest of reaching a mutual amicable settlement.

We are considering persuing this claim by way of a counterclaim in respect to the PPI and Unfair charges applied to the account and also in respect of the Claimant's unlawful conduct with view to compensation.

In regard to the default charges levied to the account for alleged late payments.The Court and yourselves will be aware that these charge types and the recoverability therof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 (The Office of fair Trading v Abbey National PLC and others 2009 and would further contest in a counterclaim that such charges are unfair in their entirity.We would also point out that if the claim was to proceed we will request Specific Disclosure for yourselves to provide copy of the executed Agreement.

With the above in mind we feel that it only fair that a more realistic figure of xxK would be acceptable and payable in instalments.

 

We look forward to hearing your response

 

 

Yours faithfully

 

Shirei

 

 

Regards

 

Andy