Hear my plea

[1 small voice]

Hello

 

I've completed the cost estimate now and need to know if I should simply send a copy to the Claimant or send a copy to the court at this stage also. Undoubtedly there will be further additions to be made in due course as we advance to our court date. Can anyone give me clear directions on what my next steps should be please.

 

Regards 1SV

[citizenB]

It is my understanding that costs should be submitted to both the court and the opposition at least 24 hours prior to the hearing

[1 small voice]

Well things seem to be going from bad to worse. I had been in settlement negotiations with the Claimant on one fo the cases and they had sent me a Tomlin Order to sign with a scheduel attached showing the sum they wanted. I went back to them with a counter proposal and they refused. I thought that that was then end of negotiations. Then out of the blue then sent me another Tomlin Order with the same figures on and said that they were keen to settle. I agreed that I would pay what they were asking and asked for confirmation of acceptance. They have now come back to me and said they want another £1,700 as interest amnd costs have increased. The time span between the 1st and 2nd Tomlin Order is only 30 days and I have complied with the time limits they have set. Unfortunatley all of this has been taking place under correspondence that was on a Without Prejudice basis. Can I aks the Court to look at the chain of correspondence or not?

 

Should I go back to them now in open correspondence and state that they are gouging at me when I have agreed to settle for what was on their scheduel? I realy feel as though they are having me at it big style and just want this thing to stop. The costs are now equal to the original debt and still growing. Any help would be very much appriciated.

 

Regards 1SV.

[1 small voice]

It is my understanding that costs should be submitted to both the court and the opposition at least 24 hours prior to the hearing

 

Thank you I'll get it off to court now. Please check out my latest posting.

[asokn]

Unfortunatley all of this has been taking place under correspondence that was on a Without Prejudice basis. Can I aks the Court to look at the chain of correspondence or not?

 

No, unfortunately that is the point of without prejudice correspondence.

[AndyOrch]

Hi 1SV responding to your PM.

 

Obviously they do want to settle but on their terms, very unprofessional conduct by the Claimant from what you state above and an abuse of you the LiP.Have you considered a Part 36 offer?

 

Making a Part 36 offer to settle should not be regarded as a sign of weakness but an appropriate way of putting pressure on an opponent to settle.It should be made 'without prejudice except as to costs' (it cannot be referred to the Judge having conduct of the proceedings until the conclusion of the matter); and it must comply with the strict requirements of Part 36 of the rules of court.

 

Generally speaking, if a Part 36 offer to settle is accepted within the relevant period the claimant is entitled to his costs of the proceedings up to the date of acceptance on the standard basis and the claim is stayed upon the terms of the offer.If a Part 36 offer to settle is accepted after expiry of the relevant period the parties must agree the liability for costs or, failing agreement, the court decides liability for costs.

 

Unless the court orders otherwise, the claimant will be entitled to costs of the proceedings on the standard basis up to the date on which the relevant period expired, and from

thereon, the offeree will be liable for the offeror's costs on the standard basis from the date of expiry of the relevant period to the date of acceptance; and the claim is stayed upon the terms of the offer.

 

As a Part 36 offer must specify a period of not less than 21 days for acceptance, within which the defendant will be liable for the claimant's costs in accordance with CPR 36.10 if the offer is accepted, if a claimant makes an offer to settle inclusive of costs, such offer will not be strictly in accordance with Part 36, and it will be in the court's discretion as to whether any costs or interest advantages will be given to the claimant making the offer, if the offer is unreasonably rejected.

 

There are consequences of non-acceptance if they want to play games with Tomlin Orders:madgrin:

 

Regards

 

Andy

[AndyOrch]

Also If you are a defendant making a Part 36 offer to settle it must also (in the case of an offer to pay a sum of money) state that the offer is to pay a single sum of money,

state that the sum will be paid at a date not later than 14 days following the date of acceptance.

An offer to settle a money claim will be treated as inclusive of all interest (subject to CPR 36.3(3)).

 

Andy

[1 small voice]

If I am barred from revealing the settlement offer as it was contained within without prejudice correspondence can I now make an offer in open correspondence to them and reveal that in court? Or altenately can I pay money into court on the basis that they have to beat me in a an incourt award to gain their costs? Can someone please look over this fr me and give me some idea of how to proceed. I realy an getting quite sick of their contiued escalation of costs and I know they are doing it just to make me crack.

 

Regards 1SV

[AndyOrch]

You make the offer via the Part 36 this wont be revealed until the conclusion, nothing to do with WP or TO,s.If its less or more from the concluded summons amount this will effect their costs.

Rather like a game of poker and who blinks first. Read CPR 36.

 

Andy

[1 small voice]

You make the offer via the Part 36 this wont be revealed until the conclusion, nothing to do with WP or TO,s.If its less or more from the concluded summons amount this will effect their costs.

Rather like a game of poker and who blinks first. Read CPR 36.

 

Andy

 

Yes OK thanks for all of the above, plenty of reading for me in the next 24 hours!!

 

I am still worried about the level of escalation in costs in such a short space of time. The costs are now equal to the original aleged debt. It is worth noting that at the recent Allocation Hearing the Judge ordered that only half of the days costs should be paid and no travel cost be allowed to the Claimant's Barister. Prior to the Judge giving the cost order for the hearing he questioned the Barister as to why they had so many fee earners working on this small action; their Barister could not give a reasonable answer hence the reduction in the costs sum allowed on the day.

 

A further question if you would be so kind, is that, can a part 36 offer be for a lesser figure than has already been offered in the past under the without prejudice basis?

[citizenB]

A further question if you would be so kind, is that, can a part 36 offer be for a lesser figure than has already been offered in the past under the without prejudice basis?

 

 

I think it can

[AndyOrch]

I think it can

 

Correct but its a game of pitching it correctly, you was happy to go with the first Tomlin amount so why not offer the same?

 

Regards

 

Andy

[1 small voice]

Correct but its a game of pitching it correctly, you was happy to go with the first Tomlin amount so why not offer the same?

 

Regards

 

Andy

 

The orignial Tomlin was drafted at just over £6.6k, that's a £4.8k debt + interest + their costs. They have now informed me that the costs are up by another £1.7k so they are wanting £8.3k to settle. Quite frankly I can make the £6.6k (just) but the £8.3 is way way beyond me. So I must pitch my part 36 at something I can afford to pay. I guess that my best bet would be an offer including costs thereby limiting the actual sum if it is accepted. It's interesting to note that the law firm are now nearly into as much money as the original aleged debt.

 

Don't forget that this only one of the actions the other one is rattling on apace and they will be issuing the Witness Statements for that one in the next day or so. I will post up the details of that in the next day or so.

 

As a point of interest I have come across mention of an SAR and think that it would be an interesting excersie to get the Claimant to supply all the data they have no me considering that I have been with them for the best part of 50 years!!

 

FYI I have been reading the Joan of Arc saga toady and found her tale quite moving. Many of her emontions ring true with me also.

 

Regards and thanks

1SV.

[citizenB]

We would be very interested to hear if they provided 50 years worth of data !!

[1 small voice]

Andy

 

I've come across something called Claderbank Offer; would this be a better type of offer to make over a Part 36 Offer from a costs point of view or should I simply go with the Part 36 as previousley suggested?

 

I have now submitted a SAR as mentioned below.

 

Regards

1SV.

[AndyOrch]

Hi 1SV

 

A Calderbank offer is written 'without prejudice save as to costs'. Its effect is that the court is unable to refer to the offer except when dealing with the question of costs at the end of the proceedings. The court has complete discretion to decide what weight should be given to the offer when considering costs.

 

A Calderbank offer provides greater flexibility than a Part 36 offer because it is not governed by strict court rules. This is a great advantage because it allows the party making the offer (the 'offeror') to be creative when making their offer, especially when putting forward terms about the length of time the offer remains open for acceptance, costs and payment issues e.g. pay within 14 days. The price for flexibility is that Calderbank offers, if accepted, create a binding contract between the parties.

 

A Calderbank offer can be a useful tool to settle disputes where Part 36 does not apply, for example in cases allocated to the small claims track and arbitration proceedings.

 

Part 36 offers

 

A Part 36 offer can be made at any stage in a dispute up to the beginning of trial, including when proceedings have yet to be issued.

 

A Part 36 offer must:

 

be in writing;

state on its face that it is intended to have the consequences of Section I of Part 36;

specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs in accordance with rule 36.10 if the offer is accepted;

state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and

state whether it takes into account any counterclaim.

Part 36 offers are always open for acceptance by the opposing party up to the start of the trial unless they are actively and expressly withdrawn in writing. This means that, even if an offer was previously rejected, it can still be accepted months later. It is important to keep a watching brief on all Part 36 offers that may have been put forward but not withdrawn. There may be a multitude of historic offers that have been forgotten about, especially in lengthy, complex disputes. The facts of a case may change making a forgotten offer commercially irresistible. Unless that offer has been expressly withdrawn, it can be snapped up! If you intend to withdraw multiple offers, it is advisable to write to your opponent itemising each offer and specify that each offer is withdrawn.

 

Despite the rigidity of the rules, the main attraction of Part 36 offers is that the set regime in Part 36 provides far more certainty as to how litigation costs will be treated. A court does not have the same degree of discretion about the weight they attach to the offer in determining the appropriate award of costs.

 

Finally, recent decisions have clarified what amounts to an offer under Part 36. Case law has shown that a time limited offer is not a valid Part 36 offer.

 

To fall within the regime, not only must the exact sum be made clear to the opposition, but also what you are offering or are prepared to accept. More importantly, in terms of liability, the offeror must be making some kind of concession in the offer.

 

Be warned, an offer to accept the full amount of a claim cannot be a Part 36 offer.

 

Regards

 

Andy

[1 small voice]

Andy

 

A very succinct comparison between the part 36 offer and the Claderbank offer, thank you so much. I am now far better armed to make my decison on which way to run this aspect of this particular case.

 

Regards 1SV

[1 small voice]

Is the £500 payable in 14 days? Be careful to make sure that it's paid on time to avoid enforcement.

No I have checked with the court as I have not yet had a written version of the order sent through to me. The court advised that I should at least wait until I have the written order before taking any action or issuing any payment. The court have recoded my call on the file.

1SV.

[1 small voice]

As expected the other side have squeaked in just in time and filed a Strike Out Application on the last day. This is for Action 1 referred to in posting #75 on the 24th March 2012. (dont confuse it with the stuff Andy is advising on above that is Action2). I have today received a huge dollop of of documents and strike out request papers, about 60 pages or so to wade through including their WS. I will over the next day or so compose my thoughts on what to do next in this case and post up my desicions as and when I have it clear in my mind what route I am going to take. Needless to say with this recent activity by the other side their cost estimate is now getting straospheric. The situation ios grave adn what would be referred to in common parlance as SH!T or BUST TIME.

 

Regards to all who have contributed their thoughts on the matter to date and watch this space.

1SV.

[1 small voice]

See # 75

[1 small voice]

Well I made my mind up and ellected to go with the Claderbank offer rather than the part 36. On balance I thought the degree of flexibility offered by the Claderbank outweighed protection offered by the part 36 even though the Calderbank formed a binding contract if accepted.

 

So we now have to see if the other side go for the offer that has been made. For the benefit of all I have made offers on both actions 1 & 2; they are very dissimilar in their content.

 

My next step is to start penning the witness statement that will be lodged in the action against me solely (action 1). This will resemble a small book in volume as the underlying events cover about 8 years and involve both corporate dealings and personal ones. The chronolgy of events will be a key factor in my defence but the WS must refelct what was in place on what date and what was still being dealt with even after the accounts were up and running. It will not be an easy task but I will map it all out on the living room carpet before putting finger to keyboard. I want to be absolutley sure I have thisgs in the right order. The last thing I want is for the other side to pull out some yellowed piece of papoer that will shoot me down. Wish me luck!!

 

Regards 1SV

Edited April 22, 2012 by 1 small voice
typos

[citizenB]

Good luck, 1SV - sounds pretty much the way I work:oops:

[1 small voice]

Events have moved on. I have submitted the following offer as listed below relates to action number 2 and I will post up the offer I have submitted on action 1 next.

The other side have not agreed it and come back with a counter offer that will be shown in my next posting.

 

 

 

This is an offer to settle which is not made in accordance with rule 36.2 of the CPR, it is a Calderbankoffer and the Defendants expressly reserves the right to refer the Court to this letter on the issue of the costs of these proceedings;

 

1 The Defendants offers to pay a single sum of money in the amount of £the full sum inclusive of all interest and to be paid within 14 days of acceptance of such offer, in writing, by the Claimant.

 

For clarity the offer is comprised of the principle sum of £the full sum as claimed plus £xyz of interest charges (168 days @ £abc per day) as accumulated as at today’s date. The sum of £as above is to be in full and final settlement of the account numbered £$%^$ as settlement of the Claimant's claim in these proceedings.

 

 

 

2 The Defendants further offers to deal with the costs of these proceedings in any one of the following three ways:-

(i) To pay 15% of the Claimant's costs of bringing its claim, subject to, detailed assessment in default of agreement, plus the sum of £DEF as awarded in the order against us dated 21st March 2012; or

(ii) To pay the fixed sum of £???? in respect of those costs plus the sum of £???? as awarded in the order against us dated 21st March 2012 (£?,??.??in total); or

(iii) To remit (only) the issue of the parties' liability for costs to the Court for determination.

 

This offer is made in a genuine attempt to resolve the matter with the minimum of further cost to both parties and is therefore open for acceptance to ?pm on Someday ? May 2012. The reason for that deadline is the fact that if the parties are unable to reach a settlement then the Defendant as a Litigant in Person will need adequate time to make preparations and/or to finalise their case in readiness for the continuation of the action.

 

So that you are clear as to the reasoning behind this offer, the Defendants consider that the Claimant's claim, which is currently pleaded, is founded upon weak documentation and as such they should have not rushed to litigation and should have sought to negotiate a settlement and not escalated this matter beyond a reasonable level. The Defendants cautioned the Claimant against the course of action they have taken and have urged the Claimant to engage in a negotiated settlement before and after the issue of proceedings. The Defendants intends to contend, as a matter of principle, that the Claimant should not have all of its costs, rather that they be limited merely to arguments of proportionality and reasonableness on a detailed assessment (save in the event the Claimant agrees its entitlement to costs is limited to 15%, as per alternative (i) or to the fixed sum option (ii) above).

 

We look forward to hearing from you when you have had the opportunity to consider this offer with your client.

Edited May 11, 2012 by 1 small voice
Error

[1 small voice]

This is the offer I made for action number 1.

 

This is an offer to settle which is not made in accordance with rule 36.2 of the CPR, it is a Calderbankoffer and the Defendant expressly reserves the right to refer the Court to this letter on the issue of the costs of these proceedings;

1 The Defendant offers to pay a single sum of money in the amount of £?,???.?? inclusive of all interest and to be paid within 14 days of acceptance of such offer, in writing, by the Claimant.

For clarity the offer is comprised of the principle sum of £?,???.?? as claimed plus £abc of interest charges (180 days @ £/ per day) as accumulated as at today’s date. The sum of £?,???.?? is to be in full and final settlement of the account numbered %$^$ as settlement of the Claimant's claim in these proceedings.

2 The Defendant will agree to cease his Counterclaim and waive all his costs in this matter to date in return for the Claimant relinquishing all rights to the portion of their claim relating to account number ?????????????? - Credit Card; thus effectively treating that account as cleared in full and final settlement.

3 The Defendant further offers to deal with the costs of these proceedings in any one of the following three ways:-

(i) To pay 10% of the Claimant's costs of bringing its claim, subject to, detailed assessment in default of agreement; or

(ii) To pay the fixed sum of £?? in respect of those costs; or

(iii) To remit (only) the issue of the parties' liability for costs to the Court for determination.

This offer is made in a genuine attempt to resolve the matter with the minimum of further cost to both parties and is therefore open for acceptance to 4pm on Someday 2012. The reason for that deadline is the fact that if the parties are unable to reach a settlement then the Defendant as a Litigant in Person will need adequate time to make preparations and/or to finalise their case in readiness for the continuation of the action.

So that you are clear as to the reasoning behind this offer, the Defendant considers that the Claimant's claim, which is currently pleaded, is founded upon weak, inaccurate and contrived documentation and the Claimant by way of its employees issued assurances that certain conditions would prevail, which have not, as such the Claimant should have not rushed to litigation and should have sought to negotiate a settlement and not escalated this matter beyond a reasonable level. The Defendant cautioned the Claimant against the course of action they have taken and have urged the Claimant to engage in a negotiated settlement before and after the issue of proceedings. Further prior to commencement of the action the Defendant has been supplied with written confirmation from the Claimant that part of the monies now being claimed in this action were covered by a form of insurance and as such the Defendant rightly construed that with the benefit of such insurance that no debt existed. The Defendant intends to contend, as a matter of principle, that the Claimant should not have all of its costs, rather that they be limited merely to arguments of proportionality and reasonableness on a detailed assessment (save in the event the Claimant agrees its entitlement to costs is limited to 10%, as per alternative (i) or to the fixed sum option (ii) above).

We look forward to hearing from you when you have had the opportunity to consider this offer with your client.

[1 small voice]

This is the text of the counter offer issued by the other side in action 1.

As we have set out in previous correspondence we do not consider that your Defence has any prospect of success hence our Application to Strike Out and/or for Summary Judgment pursuant to CPR Parts 3.4 and 24. However, in the spirit of the overriding objective, our client is prepared to take a commercial view of this case and, in the interests of saving the time and costs of contested proceedings, has instructed us to make the following offer on its behalf under Part 36 of the Civil Procedure Rules 1998 (CPR).

The offer is a Claimant's offer made in accordance with CPR Part 36 and is intended to have the consequences set out in that Part.

1 Our client's claim is for £full amount (including interest since the issue of the Claim Form) the personal guarantee and £full amount under the credit card plus costs.

2 Subject to the terms set out below, our client is prepared to accept the sum of £both sums combined inclusive of interest in full and final settlement of its claim against you. This offer relates to the whole of the claim and takes into account any counterclaim which you may have.

3 Provided that you accept the offer within 21 days (as to which see below), the sum offered will include interest. However if you do not accept the offer within 21 days, then interest shall accrue as follows:

(a) on the sum offered

(b) at the primary rate sought under the claim, which is 8% per year

© from the day after the expiry of the 21 days until the date of your acceptance of the offer or (if you should need to obtain the court's permission to accept the offer) the court's permission, whichever is later.

4 To accept this offer you must send us a written notice of acceptance. If you accept the offer within 21 days, that is to say by some time on someday 2012, then our client will be entitled to its contractual costs of the proceedings up to the date of acceptance in accordance with CPR Part 36.10 (such costs to be assessed by the court on the standard basis if we cannot reach an agreement as to how much you must pay). If acceptance occurs after 21 days we will have to agree liability for costs and the presumption is that our client will be entitled to its costs up to the date of acceptance under CPR Part 36.10 (5).

5 If you accept this offer, payment must be made within 14 days of acceptance.

6 If you do not accept this offer but our client achieves a result at trial which matches or betters it, then our client will rely on the provisions of CPR Part 36.14.

Please acknowledge safe receipt of this letter, and, if necessary, request clarification of the offer within 7 days of receipt.

We look forward to hearing from you.