Full and Final - Without Prejudice(?)

[Peterbard]

Personally I cannot see any advantage, unless you are considering challenging the existence of the agreement and the debt. But it is an interesting question and I would like to hear other views.

 

I am sure that the creditors acceptance would be so headed however.

[unclebulgaria67]

Well yes making an F&F would acknowledge owing the debt in full or part, so if there is any chance of court or current case, then you should mark 'without prejudice'.

 

An F&F offer is usually where you owe a debt, but your financial position is such, that any reveal of your I&E would tell a creditor that they would be better of accepting any money they are offered. If you have any assets and/or are currently working, then creditors may not be willing to accept, unless it was for a reasonable percentage of the debt owed.

[Peterbard]

So in the case of say a statute bar, would the without prejudice offer serve to reset the clock ?

 

In other words does" without prejudice" refer to the "offer" in which case presumably it would reset it because the correspondence it self would be an acknowledgement, or does it refer to the letter itself in which case it wouldn't.

[dx100uk]

any F&F acks the debt. even if paid eventually or not.

 

is this not solely that the contents of the letter 'itself' cannot be used in court.

 

however in my eyes

the more important aspect is the impact this has on the debtors future

the credit file MUST be marked as settled [NOT PS ]

and ALL negative data removed.

 

else you might as well burn the money for all the good it will do.

 

dx

[Guest]

So in the case of say a statute bar, would the without prejudice offer serve to reset the clock ?

 

...

 

this HL case, bradford & bingley v rashid 06, provides an interesting discussion and authority of some of the issues. don't know if there is any subsequent authority?

Edited June 9, 2013 by Ford

[Peterbard]

Yes also Muller vs Lindsay and Mortimer[1996]

 

It seems that the "without prejudice " only includes subjects under current or imminent dispute , or those in process of an action. Usually these are negotiations of a settlement.

 

The restriction is limited to these maters only, so if for instance a F and F is accepted, and the creditor then chooses to ignore it once the contract is made, the debtor can use the without prejudice correspondence to support the contract, because the dispute would involve the agreement as the subject matter, and the without prejudice negotiations would be just supporting evidence.

[Peterbard]

"It was unclear as to whether the courts would permit evidence of without prejudice exchanges to be relied on where there is a dispute as to the

proper interpretation of the settlement agreement. The decision of the Supreme Court in Oceanbulk Shipping & Trading SA -v- TMT Asia Limited

and 3 others [2010] UKSC 44 has now confirmed that without prejudice evidence will be admissible in such circumstances"

 

Re: above

[Peterbard]

Thanks to Ford for the case. This is from analysis of that case.

 

16. The solution which I would therefore favour, and which I think is in accordance with principle, is that the without prejudice rule, so far as it is based upon general public policy and not upon some agreement of the parties, does not apply at all to the use of a statement as an acknowledgement for the purposes of section 29(5). That, I would infer, is what everyone thought in Spencer v Hemmerde [1922] 2 AC 507. It is in accordance with principle because the main purpose of the rule is to prevent the use of anything said in negotiations as evidence of anything expressly or impliedly admitted: that certain things happened, that the party concerned thought he had a weak case and so forth. But when a statement is used as an acknowledgement for the purposes of section 29(5), it is not being used as evidence of anything. The statement is not evidence of an acknowledgement. It is the acknowledgement. It may, if admissible for that purpose, also be evidence of an indebtedness when it comes to deciding this question at the trial, but for the purposes of section 29(5) it is not being used as such. All that an acknowledgement does under section 29(5) is to allow the creditor to proceed with his case. It lifts the procedural bar on bringing the action. Questions of evidence to prove the debt will arise later.

[Guest]

it is an interesting case, that deserves to be read in full, and 'cherry picked' depends on the individual circumstances. it seems that if the WP comms are genuine (ie not just an attempt to run time down) then contents may not be admissible re acknowledgement?

also, '..It is of course open to the parties to agree that whatever they say in negotiations will not be capable of being used even as an acknowledgement for the purposes of section 29(5), but in such a case the creditor will be alerted to the fact that the debtor intends to rely upon the statute. ..'

Edited June 9, 2013 by Ford

[Peterbard]

I think what is being said (massive generalization~)

 

Is that the information contained with the statute barred document does not acknowledge the debt under the definition of the SOL, however the letter itself would.

 

In other words the WP applies to the information not to the existence of an acknowledgment.

 

Not that the letter may not meet the requirements of acknowledging the debt under other criteria of course.

[Guest]

so, the crux is, in general, if definitely barred don't communicate, apart from perhaps the stat bar letter?

if using WP comms to try and stretch out time re bar, then beware as those contents might be admissible as an acknowledgement? unless otherwise noted?

and, if bar is not in issue, then WP comms stand as they are. ie not admissible save as to costs?

Edited June 10, 2013 by Ford

[Peterbard]

so, the thrust is, if definitely barred don't communicate, apart from perhaps the stat bar letter?

if using WP comms to try and stretch out time, then beware as those might be admissible as an acknolwedgement?

and, if bar is not in issue, then WP comms stand as they are. ie not admissible save as to costs?

 

Yes basically do not rely on without prejudice when it comes to the SOL acknowledgment notwithstanding that there may be other measures you can include within your correspondence to protect you, dependent on circumstances.

[BRIGADIER2JCS]

Hi

 

just a quickie - if considering putting forward a full and final offer to a creditor (of course once you have concluded all your research and undertaken all process) should you head the offer 'without prejudice' if there is a court case outstanding for the debt?

 

 

would putting forward the offer of F&F mean that you accept liability for the debt?

 

 

Thanks

NEVER USE WITHOUT PREJUDICE WHEN DEALING WITH DEBT MATTERS, you may need the letter in court yourself, and be precluded from using it.

[Peterbard]

NEVER USE WITHOUT PREJUDICE WHEN DEALING WITH DEBT MATTERS, you may need the letter in court yourself, and be precluded from using it.

 

It is not as simple as that Brigadier, it depends on which particular debt matter you are pursuing. it may be that you do not want the substance of you negotiations to be used in proceedings.

[BRIGADIER2JCS]

It is very simple to use this phrase if you are inexperienced in such matters does and I have many ye ears of experience of it causing extreme problems when litigation has been started.

[Peterbard]

It is very simple to use this phrase if you are inexperienced in such matters does and I have many ye ears of experience of it causing extreme problems when litigation has been started.

 

Really, perhaps you could elaborate and give us a few illustrations.

 

Because in my experience it is never wise to give such blanket advice when referring to a vast variety of unknown scenarios.

[BRIGADIER2JCS]

The greatest number of difficulties occur with F&F offers which are declined and later are the subject of litigation and the debtor wishes to show the court that they have attempted to reach a resolution.

[Guest]

but that is n/a re a defence. goes to costs, if applicable, re unreasonableness. at which stage WP comms can be considered anyway?

Edited June 9, 2013 by Ford

[BRIGADIER2JCS]

Really?

[Guest]

yes

it's no defence to say i made an offer but they didn't accept it! except re any costs

depends on individual circumstances re whether to use WP

Edited June 10, 2013 by Ford

[Peterbard]

Yes really.

In my first post I said that, I could see no advantage in marking an offer Without prejudice in these circumstances, but that is a long way from saying that you should never use the term in debt negotiation.

 

In MY experience without prejudice negotiation is a very valuable tool, particularly when securities or other issues are involved. Also if you read the earlier posts you will ser that when a contract is formed using a WP statement, the rule is extinguished and the evidence admissible.

 

Like I said it is not that simple.

[Peterbard]

This is useful

 

http://www.ashurst.com/doc.aspx?id_Resource=4660

[AndyOrch]

Hi

 

just a quickie - if considering putting forward a full and final offer to a creditor (of course once you have concluded all your research and undertaken all process) should you head the offer 'without prejudice' if there is a court case outstanding for the debt?

 

 

would putting forward the offer of F&F mean that you accept liability for the debt?

 

 

 

Thanks

 

Is your question in connection to your thread here Lindy ? :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?385251-Lloyds-Taking-Me-To-Court-With-A-Recon-Agreement

 

Regards

 

Andy

[steampowered]

Marking an offer "without prejudice" has limited legal significance. Genuine attempts to settle a dispute are covered by "without prejudice" privilege whether or not that is marked on the letter. This is set out clearly in the case Rush & Tompkins v Greater London Council [1988] UKHL 7:

 

"the application of the [WP] rule is not dependent upon the use of the phrase 'without prejudice' and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission."

 

The point of marking the letter WP is to avoid any doubt. WP privilege means you cannot show the letter to the court during the main proceedings. However WP letters can be shown to the court when it decides who should pay legal costs, which is important on fast track and multi track.

 

If you want to make a settlement offer but also want to say something else, it is best to write two letters. One WP letter and one open letter.

 

Making a F+F offer is not an admission of liability. Make the offer, with a very brief explanation why this is a good offer and the Claimant's case is rubbish, and mark the letter WP.

[Peterbard]

 

 

Making a F+F offer is not an admission of liability. Make the offer, with a very brief explanation why this is a good offer and the Claimant's case is rubbish, and mark the letter WP.

 

Depends upon the contents of the letter and which parts of it are to be considered as without prejudice, as for the letter being an acknowledgment of the debt in terms of the SOL , the case law is clear that the "without prejudice" notice will not effect this, one way or the other.