Hear my plea

[1 small voice]

Here is the next posting relating to action number 2.

 

We write further to our previous correspondence on this matter.

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 sum (including interest since the issue of the Claim Form) plus costs.

2 Subject to the terms set out below, our client is prepared to accept the sum of £full sum 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 some day 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.

[1 small voice]

That's it for now, who ever can help please help. I need all the support and guidance I can muster agaist the evil empire. They are trying to tie me and Mrs 1SV up in knots withe legal jargon of part 36's. realy the legal proceedure needs to be amended to prevent the little guy being crushed by the banking juganaught. Any posting that can offer any way forward will be gladly received.

 

Regards to all 1 Small Voice.

[AndyOrch]

Hi 1SV

 

Yes matters have progressed some what, give me chance to digest what you have posted in relation to, and I will come back to you mid week.

 

Regards

 

Andy

[citizenB]

Hi 1smallvoice, I will leave this in the capable hands of andyorch as it is now way beyond my knowledge.

[1 small voice]

Andy

 

Thank you, I now simply confirm recipt of the Part 36 offers and leave it at that for now. I have 21 days to accept or reject. Meanwhile I contiue to work on my stuff for the courtroom showdown as I am now convinced that this going to go all the way.

 

Regards 1SV.

[1 small voice]

Yes this is getting pretty deep now and expert help will be the best.

 

Regards 1SV.

[AndyOrch]

Hi 1SV

 

Apologies for the delay.Having read through your recent posting and considered the offers, ( or lack of in their case) a few points spring to mind that could impact should settlement be achieved in your case.

 

Firstly they have responded with a Part 36 to your offer of a Calderbank.No reference has been made within their response of your offer and simply affirms their original claim amount so in effect no offer.

It is important to note that within their response vis a Part 36 that they have not correctly drafted it and is in fact in valid.

 

To make a Part 36 offer valid they must make reference somewhere within the draft " that the offer intends to have the consequences of Section I of Part 36 " and also " state whether it relates to the whole claim or part of it, or to a particular issue and state whether it takes into account any counter claim. With regards to time limits " specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs if the offer is accepted " It has been omitted therefore its invalid.

 

An offer needs to expressly state that it has the consequences of Section I of Part 36. The onus is on the offeror to ensure that this is clearly drawn to the offerees' attention. A party should not play roulette and rely upon the Court's discretion to interpret the offer in its favour.

 

With regards to your Calderbank offer this is made as a contractual offer and is made outside of the civil procedural rules. As a contractual offer the contents of the offer itself are not prescribed and can be set out by the party making the offer. Also another tip and good tactic which you can employ is to immediately offer the same amount set out in the Calderbank offer by way of part 36, this will then facilitate the added benefit that your legal costs will not be limited.

 

Whether or not you are in agreement or not I thought you should be aware of above points in assisting with your decision on whether or not to settle.

 

Regards

 

Andy

[1 small voice]

Andy

 

Thanks for the detailed and well presented reply. I am OK will the majority of it however in your closing section you say to go back straight away with my version of a pert 36. I will happily do that however in the action against Mrs 1SV & I the costs are now equal to the orginal sum claimed. If you recall my Calderbank offer put forward 3 ways of dealing with costs (1) to pay a %, (2) to pay a fixed sum, (3) to let the court decide. If I now make a part 36 the cost implications are governed by the rules and follow a set format so how do I make an offer that I can afford and not pay their inflated costs?

 

On the other action against me in isolation I made a similar claderbank where I was offering the 3 cost options but only offering to meet part of the claim.

 

In the mean time I have written to the other side and asked for a specific statement that my Claderbank has been rejected to which they have confirmed that their part 36 is the only offer on the table at the momnet and my Claderbank has been turned down. They have also agreed to submit an up to date cost estimate so that I may consider their part 36 and its cost implications.

 

Please come back to me with any guidance that is available.

 

Regards 1 Small Voice.

[AndyOrch]

"If I now make a part 36 the cost implications are governed by the rules and follow a set format so how do I make an offer that I can afford and not pay their inflated costs? "

 

A very valid point which yes would negate the need for a Pt 36.However your Claderbank has now been declined with only their PT36 on the table.

 

Whether to accept or reject their offer?

 

This has a number of significant consequences:

 

Rejection of an offer does not mean that the offer ceases to be available for later acceptance,

Likewise, the making of a counter-offer does not mean that the first offer ceases to be available for acceptance,

Likewise, the making of a further offer by a party does not mean that an earlier offer by that party ceases to be available for acceptance,

and accordingly, several different (and indeed inconsistent) offers may be available for acceptance at the same time.

 

Part 36 offers can only be used after judgment for assessing costs, and it will only adverley affect you if you lose and they gain judgment for a greater amount than the part 36 offer.

 

Andy

[1 small voice]

This becomes more and more strange by the day. By the sound of what they had put to me a non-accptance of their part 36 would be construed by them as a rejection. I don't want to get too bogged down with the technicalities or the mechanics I just want to throw an offer at them that is reasonable and will not leave me wide open for their massive costs.

 

Can you outline a way that an offer can be made either under the part 36 rules or in some other way whereby I can be seen to trying to settle the matter?

 

Regards 1SV

[AndyOrch]

I really am at a loss as what to suggest 1SV.Their Part 36 offer on reiterates their claims and is no advantage to you as a means to settle the matter.The CPR encourages the parties to settle the claim/s by negotiation before and during the proceedings. Both the Claimant and the Defendant may make offers to settle (these are not disclosed to the Judge hearing the trial). These offers are made by formal letter and are automatically withdrawn after a certain period (which cannot be less than 21 days after they are made). After that date they can only be accepted if the parties agree or the Court orders it.

 

However there is a sting in the tail for a Defendant; in order for an offer from a Defendant to be effective, the Defendant must also offer to pay the Claimant’s “reasonable costs” up to the date the offer is accepted. It is therefore essential that any offer to settle is made as early as possible for two reasons. If the offer is accepted, the Claimant’s costs that the Defendant must then pay will be minimised; if rejected and the Claimant fails to beat it, the amount of costs that the Defendant will be able to recover from the Claimant will be maximised.

 

Both Claimants and Defendants can make offers, and they have different consequences when the case comes to Court. For a Claimant, if the Court awards the Claimant more in damages than his or her offer, then the Court may in addition award the Claimant indemnity costs, interest on those costs, and also interest on the damages. If the Claimant doesn’t beat their own offer then they will just get the amount ordered and interest plus their reasonable costs.

 

In contrast, if the Claimant fails to beat a Defendant's offer then they will get the amount ordered plus their costs up to the date they could have accepted the Defendant's offer, but they will have to pay the Defendant's costs after that date plus interest on those costs and their own, and they will include the costs of the trial.

To take an example, suppose a claim is worth £10,000. The Defendant could offer to settle the claim for that amount together with the Claimant’s reasonable costs even before proceedings are issued but the Claimant rejects it. If the amount finally awarded at the trial is £10,000, the Defendant will have to pay the Claimant the £10,000 but the Defendant can then ask the Court to order the Claimant to pay all of the Defendant’s costs from the last date on which the Claimant could have accepted the Defendant's part 36 offer. The Claimant will only get his or her reasonable costs up to that date.

 

If the parties have each spent £10,000 in legal costs getting the case to trial, then in the example the Claimant will get£10,000, but will have to pay £20,000 in costs. The Defendant will only have to pay £10,000 plus the Claimant’s costs up to the part 36 offer which are likely to be minimal.

 

For a Claimant the effect is even more dramatic; suppose the Claimant makes an offer to settle of £10,000 before the proceedings start and the case takes 3 years to get to trial, at which point costs are £10,000 on each side. If the award is £10,000 the Court can be asked to order the Defendant to pay interest on the £10,000 at up to 10% above base rate from the date of the Claimant’s part 36 offer. If the base rate is 5%, then the total interest could be as much as £4,500. In addition the Claimant will be able to claim costs on an indemnity basis plus interest on those costs at a rate not exceeding 10% above base rate. The Defendant would have to pay £14,500 plus £20,000 costs plus interest on the Defendant's costs.

 

I'm not sure that the Claimant fully understands the gravity and consequences of the PT36 or a Calderbank come to that! Proceed to Trial?

 

Andy

[hmmh1978]

Be careful of the information that is present on the web, especially solicitor's websites that have not been updated since 2009. Be aware of copyright issues when copying and pasting without giving credit Andy, it would be easier just to link to the website.

 

If the Claimant doesn’t beat their own offer then they will just get the amount ordered and interest plus their reasonable costs.

 

Andy

 

Back to the crux of the matter, the information put in bold is wrong and has been since 1st October 2011 with the amendment Civil Procedure (Amendment No. 2) Rules 2011 (SI 2011/1979).

 

See the introduction of para 1A with the phrase “at least as advantageous” which means that if they did offer £10,000 in their Part 36 and they are awarded £10,000 in judgment, then they reap all the rewards of CPR r. 36.14(3).

 

This was to reverse the EWCA decision in Carver v BAA Plc [2008].

[1 small voice]

Be careful of the information that is present on the web, especially solicitor's websites that have not been updated since 2009. Be aware of copyright issues when copying and pasting without giving credit Andy, it would be easier just to link to the website.

 

 

 

Back to the crux of the matter, the information put in bold is wrong and has been since 1st October 2011 with the amendment Civil Procedure (Amendment No. 2) Rules 2011 (SI 2011/1979).

 

See the introduction of para 1A with the phrase “at least as advantageous” which means that if they did offer £10,000 in their Part 36 and they are awarded £10,000 in judgment, then they reap all the rewards of CPR r. 36.14(3).

 

This was to reverse the EWCA decision in Carver v BAA Plc [2008].

 

JEESE!! this thing is realy hotting up, I am on a vertical learing curve here and doing my best to keep up with the information overload. I just want this thing to stop but I guess that being this far in I have to keep going now. I am favouring submitting a part 36 of my own but will make the call in the next day or so. Is there any cut off point in time approaching trial when a part 36 would not be allowed? Regards 1Small Voice.

[1 small voice]

I really am at a loss as what to suggest 1SV.Their Part 36 offer on reiterates their claims and is no advantage to you as a means to settle the matter.The CPR encourages the parties to settle the claim/s by negotiation before and during the proceedings. Both the Claimant and the Defendant may make offers to settle (these are not disclosed to the Judge hearing the trial). These offers are made by formal letter and are automatically withdrawn after a certain period (which cannot be less than 21 days after they are made). After that date they can only be accepted if the parties agree or the Court orders it.

 

However there is a sting in the tail for a Defendant; in order for an offer from a Defendant to be effective, the Defendant must also offer to pay the Claimant’s “reasonable costs” up to the date the offer is accepted. It is therefore essential that any offer to settle is made as early as possible for two reasons. If the offer is accepted, the Claimant’s costs that the Defendant must then pay will be minimised; if rejected and the Claimant fails to beat it, the amount of costs that the Defendant will be able to recover from the Claimant will be maximised.

 

Both Claimants and Defendants can make offers, and they have different consequences when the case comes to Court. For a Claimant, if the Court awards the Claimant more in damages than his or her offer, then the Court may in addition award the Claimant indemnity costs, interest on those costs, and also interest on the damages. If the Claimant doesn’t beat their own offer then they will just get the amount ordered and interest plus their reasonable costs.

 

In contrast, if the Claimant fails to beat a Defendant's offer then they will get the amount ordered plus their costs up to the date they could have accepted the Defendant's offer, but they will have to pay the Defendant's costs after that date plus interest on those costs and their own, and they will include the costs of the trial.

To take an example, suppose a claim is worth £10,000. The Defendant could offer to settle the claim for that amount together with the Claimant’s reasonable costs even before proceedings are issued but the Claimant rejects it. If the amount finally awarded at the trial is £10,000, the Defendant will have to pay the Claimant the £10,000 but the Defendant can then ask the Court to order the Claimant to pay all of the Defendant’s costs from the last date on which the Claimant could have accepted the Defendant's part 36 offer. The Claimant will only get his or her reasonable costs up to that date.

 

If the parties have each spent £10,000 in legal costs getting the case to trial, then in the example the Claimant will get£10,000, but will have to pay £20,000 in costs. The Defendant will only have to pay £10,000 plus the Claimant’s costs up to the part 36 offer which are likely to be minimal.

 

For a Claimant the effect is even more dramatic; suppose the Claimant makes an offer to settle of £10,000 before the proceedings start and the case takes 3 years to get to trial, at which point costs are £10,000 on each side. If the award is £10,000 the Court can be asked to order the Defendant to pay interest on the £10,000 at up to 10% above base rate from the date of the Claimant’s part 36 offer. If the base rate is 5%, then the total interest could be as much as £4,500. In addition the Claimant will be able to claim costs on an indemnity basis plus interest on those costs at a rate not exceeding 10% above base rate. The Defendant would have to pay £14,500 plus £20,000 costs plus interest on the Defendant's costs.

 

I'm not sure that the Claimant fully understands the gravity and consequences of the PT36 or a Calderbank come to that! Proceed to Trial?

 

Andy

 

Andy Yes I guess that I have to go all the way now.. I think I will be sending in a Part 36 of my own on both actions, but the big thing is the costs; in one action they have equaled the claim and in the other they are heading for £11k. Any furthe assistance you can give regarding the construction of a Part 36 would be of immense help, also a bulit point do's & don't would be of benefit. Regards 1 Small Voice.

[hmmh1978]

Is there any cut off point in time approaching trial when a part 36 would not be allowed? Regards 1Small Voice.

 

You may make a Part 36 offer:

 

1.) before proceedings have started; and/or

2.) during proceedings; and/or

3.) after judgment but during an appeal;

 

So there is no real time limit but the advantage of a Part 36 is to offer it as early as possible so the other side are pressured into settling due to the implication of an adverse costs order.

 

Good luck.

 

HMMH

[AndyOrch]

http://www.google.co.uk/url?sa=t&rct=j&q=draft%20part%2036%20offer%20letter&source=web&cd=1&ved=0CHIQxQEwAA&url=http%3A%2F%2Fdocs.google.com%2Fviewer%3Fa%3Dv%26q%3Dcache%3AAiOGD9thUUUJ%3Awww.ashurst.com%2Fdoc.aspx%253Fid_Resource%253D5302%2Bdraft%2Bpart%2B36%2Boffer%2Bletter%26hl%3Den%26gl%3Duk%26pid%3Dbl%26srcid%3DADGEESjd5OVi6kenlVb2gahMsNUnVOAeiLHdFPaDsRstuK1Mwjtsb_A3a0hqXe-g0dT7Os0tBVfNtZQkDpMYPgvhSjXJEUiPahXIB_L9gvxFOSsi6WgGIcDCPiEr7oNN7YKpWEFyF6V8%26sig%3DAHIEtbQo6ZUCV29qAN1pjJ5gYtui8e0ZuQ&ei=BIW3T4uYKOnQ0QXiwKn5Bw&usg=AFQjCNF7DzAHT9ncKTsXkFEwBTOVeMe4EA

[1 small voice]

Thanks for guidance. Well it looks a though this is going to go right to the wire now I have just go the other sides costs estimate through and it way -way beyond the orignia aleged debt. so a part 36 is now totlay out of the question. This is now sh!t or bust time for me. I have to run the guantlet and hope that all the info I have sifted through is OK on the day.

 

Regard

 

1Small Voice.

[1 small voice]

Andy

 

Thanks for info. I have now decided to go all the way with this the other side have now provided me with their cost estimate and it beyond the orignal aleged debt so Ia part 36 will do no good. I am now prepared to go to court and stand my ground win or loose. If I do loose I will plead to the court that the only way I can discharge the judgement will be by way of monthly payments from existing income and that will take years!!

 

Thanks for your help

 

Regards 1 SV.