Settle f&fl or part 36? -help/advice

[jonji]

I am wondering if anyone is knowledgeable in the making a full and final offer or accepting a p art 36 offer which was made a few months ago and the time has passed to accept, so it will now be withdrawn(?) Could you please advise the best way forward?

 

I am now in a position to be able to settle, but I don't know how to start the process, because the OC had made a p36 offer. I am unsure if the offer still stands because it stated it would be withdrawn if I didn't accept in the stated period. I was not in a position to accept at that time and because of illness and other issues, I did nothing.

The OC have since applied for a summary judgement which is due to be heard in November.

 

I am unsure if the court case will go in my favor, but either way, I would just like to settle now. There have been other hearings that have been adjourned etc and I am trying to cut down costs as much as possible and reduce the stress of going back to court.

 

I would appreciate any help or advice. Thank you

[honeybee13]

Hello and welcome to CAG.

 

I expect the forum guys will be along later with advice for you.

 

My best, HB

[steampowered]

Under CPR 36.9 (2) and 36.3 (7) a Part 36 offer can only be withdrawn by serving a formal written notice of withdrawal.

 

It does not matter if the offer says it is only open for a period of time. Even if the offer says it is only open for 21 days but it is two years later, if the offer was not formally withdrawn in writing it is open and you can accept it. There is very specific case law on this - http://www.bailii.org/ew/cases/EWCA/Civ/2010/726.html. The exception would be if they did actually send you a formal notice of withdrawl but you just never received it, since this could still be treated as serving the notice.

 

If you want to accept the offer then I would go ahead and accept in writing. Make sure you have taken into account the costs consequences - if you accept the other side's Part 36 you will be automatically liable for their legal costs as well as the settlement amount, this should be mentioned by the offer.

[Ganymede]

Under CPR 36.9 (2) and 36.3 (7) a Part 36 offer can only be withdrawn by serving a formal written notice of withdrawal.

 

It does not matter if the offer says it is only open for a period of time. Even if the offer says it is only open for 21 days but it is two years later, if the offer was not formally withdrawn in writing it is open and you can accept it. There is very specific case law on this - http://www.bailii.org/ew/cases/EWCA/Civ/2010/726.html. The exception would be if they did actually send you a formal notice of withdrawl but you just never received it, since this could still be treated as serving the notice.

 

If you want to accept the offer then I would go ahead and accept in writing. Make sure you have taken into account the costs consequences - if you accept the other side's Part 36 you will be automatically liable for their legal costs as well as the settlement amount, this should be mentioned by the offer.

 

 

The OP will only potentially be liable for the Claimant's costs from the end of the 21 days to the date it is accepted.

[jonji]

Thank you for the posts above. They have given me food for thought:-

 

*The original offer stated in writing that the offer would be withdrawn if I didn't accept it within 21 days. Would this suffice as a 'formal written notice of withdrawal'? Or, would it have to made in a separate letter?

 

*Cost consequences- does this include costs from all other hearing that have been adjourned or stayed and also any costs accrued from the end of the 21 day period, up to when the offer is accepted? ie all costs to date!

 

*If the OC has withdrawn, could I then go on to make a p36 offer or a full and final offer to settle?

 

Regards

[steampowered]

- No, the fact that the offer says it would be withdrawn if not accepted in 21 days is not sufficient. There must be a separate written notice of withdrawal. If you try to accept the offer now I suspect you will encounter resistance - after all, the other side's solicitors would be looking at a professional negligence claim from their client if the client was not warned about this - but if no notice of withdrawal the offer is open.

 

- On costs, have a read of CPR 36.10 (4) and (5) at http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part36#36.10.

 

- You are free to make a counter Part 36 offer or any other form of settlement offer at any time. It is actually not uncommon for the Claimant and Defendant to both issue Part 36 offers for the same amount as the costs consequences are different in each case (this is what happened in the case linked in my last post). If you do want to make your own Part 36 offer make sure you have a good read through Part 36 as there are very strict formalities you need to comply with and you need to make sure you understand the costs consequences.

[jonji]

Thank you steampowered for the information- it has answered some of my questions. I will read through the links etc to get a better understanding of it all.

 

Regards

[steampowered]

No worries, feel free to ask if there is anything you are unsure about.

[Guest]

jonji

just some 36 info i posted elsewhere that should be useful generally. seems up to date, but always double check things if in doubt.

http://www.pinsentmasons.com/PDF/Part36offerstosettle.pdf

[jonji]

Thank you Ford....that makes things a little easier to understand, but I am still unsure of a few things with the offer that was put to me via the claimants solicitors.

 

I thought it might be easier if I put up part of the letter in which the offer was made and hopefully, someone might be able to clarify the bits which I don't understand. I will leave out personal information for obvious reasons, but the important bits are there below;

 

Without Prejudice Save as to Costs

 

This offer is intended to have the consequences set out in Section 1 of Part 36 of the Civil Procedure Rules. In Particular, you will be liable for our client's costs up to the date of notice of acceptance which must be in writing (notice of acceptance), in accordance with CPR 36.10, if the offer is accepted within 21 days (the relevant period).

 

Terms of offer

 

Our client is willing to settle the whole of the claim in the matter referred to above on the following terms:

 

* you pay our client the sum of £XXXX in full and final settlement of the sums claimed in these proceedings. The settlement sum does not include costs and, as referred to above, you will be liable to pay our client's costs on the standard basis, to be assessed if not agreed, up to the date of service of notice of acceptance if the offer is accepted within the relevant period.

 

The offer will remain open for acceptance unless and until it is withdrawn by us in writing.

 

Failure to accept this offerr

 

If you do not accept this offer, and our client obtains judgment which is equal to or more advantageous than this offer, our client intends to rely on CPR 36.14. In other words, our client will be seeking an order in the following terms:

 

* You pay our client's costs up to the expiry of the relevant period.

* you pay our client's costs on the indemnity basis from the date on which the relevant period expired, with interest on those costs of up to 10% above base rate and interest on the whole or part of any sum awarded at up to 10% above base rate for some or all of the period starting from the same date

* you pay an additional amount of 10% of damages awarded by the Court

 

If you think that this offer is in any way defective or non-compliant with Part 36, please let us know.

 

We look forward to receiving your response by xx p.m. on xx xx xx, failing which we are instructed by our client to make an application to the court for the stay to be lifted and our application for summary judgment to be heard.

 

Okay......the sum of the full and final settlement is actually less than the amount allegedly owed, but I understand their reasoning behind this (advantageous in costing if they are successful in court).

 

Although they mention 'costs', there is no figure mentioned, so how am I supposed to know what this figure actually is. I understand from I have read so far from the links that have been posted on this thread that if I have not agreed to the offer within the twenty one day period, then parties must agree liability for costs and if that fails, the court will decide liability for costs. I wouldn't know where to begin bargaining here in this region! I think I would be needing help from someone more knowledgeable than myself!

 

On receipt of this letter, they had given me 14 days to accept or they would be making an application to have the case heard. Should it not have 'specified a period of acceptance of no less than 21 days within which the defendant will be liable for the claimant's costs if the offer is accepted (the relevant period)'? I am confused with this part! This is why I thought their offer had been withdrawn as the 14 days they had given me had expired!

 

Is the offer defective or non-compliant with part 36?

 

Any help would be appreciated. I am looking for the best way forward to put this all behind me

[Guest]

jonji

maybe need to post up full letter (less any idientifiables)? just to be sure any advice given is aware of whats it on? unless it can be given otherwise, steampowered and ganymede seem to be in the know. wait see what they say.

as you know, cpr part 36.2 is re the form so go through that tick by tick re 36.2 (2). also see the rest of 36.

yes, seems they 'must' comply with 36.2 (2)© re the min 21 days in that.

re agreeing any costs, if liable, you would ask for their breakdown. then assess, and dispute accordingly?

Edited October 20, 2013 by Ford

[jonji]

Hi Ford.....that is the full letter minus personal details! I have only left out the top part that mentions that they think I do not have a good defense etc.

 

Am I right in thinking that they should have allowed 21 days then and they didn't? From the date on the letter to the date I had to reply, was only 14 days and not 21 days. I don't think it would be a good idea to put the actual dates on here- for obvious reasons........

 

Thanks for your help so far though

[Guest]

if they have not complied with 36.2 (2)© then it is not compliant in form. 36.2 (2) says 'must', (2) © says 'specify'....re 36.10. have they mentioned 36.10 contents re acceptance?

wait see what steam' and ganymede say.

[Ganymede]

Is this a fast track case?

 

Isn't the 14 days deadline in relation to them applying to lift the stay?

 

Costs aren't specified as a figure yet which is normal. They will be assessed by the Court if you can agree them.

[jonji]

Is this a fast track case?

 

Isn't the 14 days deadline in relation to them applying to lift the stay?

 

Costs aren't specified as a figure yet which is normal. They will be assessed by the Court if you can agree them.

 

Yes Ganymede, I think the 14 days is must be re them applying for the stay to be lifted. Does this mean the 21 days mentioned is re when the clock starts ticking for the interest on the costs?

 

This case has never been allocated to any track.

 

What I think I need at this point is some sort of a template letter to either respond to their offer or make my own. I don't think I should be paying their costs, but would like to settle out of court. Time is no longer on my side and my health issues are not getting any better.

 

Any help/advice would be greatly appreciated.

 

Regards

[The Mould]

Yes Ganymede, I think the 14 days is must be re them applying for the stay to be lifted. Does this mean the 21 days mentioned is re when the clock starts ticking for the interest on the costs?

 

This case has never been allocated to any track.

 

What I think I need at this point is some sort of a template letter to either respond to their offer or make my own. I don't think I should be paying their costs, but would like to settle out of court. Time is no longer on my side and my health issues are not getting any better.

 

Any help/advice would be greatly appreciated.

 

Regards

 

Forgive me dear fellow member, but I have not read the entire thread.

 

When does 21 days deadline expire?

 

If offer is not formally withdrawn pursuant to Pt 36 rules, then offer remains open for you to accept, even on day of trial. I believe Steampowered has pointed this fact out to you.

 

What are their costs estimated as of date hereof?

 

What is nature of case and what track do you anticipate it being allocated to if no settlement agreement can be reached?

 

Their CPR Pt 36 offer should state the sum required and that it takes into account any counter-offers.

 

How much do they want from you to settle? This is the first question to put to Claimant's sols acting, state that you would also like to settle this matter without the need for a full trial and that you sincerely hope that a compromise settlement agreement can be reached in order to avoid any further unnecessary costs in this matter.

 

In the event of your client being unwilling to engage in discussion with a view to settle his claim, then you reserve your rights to disclose the contents herein to the trial judge at the costs stage of this litigation.

 

Come back on the above and I will post further advice, help, support and my opinion in respect of the same.

 

Kind regards

 

The Mould

[jonji]

Thank you The Mould for the above.

 

The costs to date are in excess of £7,000, but this case has been adjourned and stayed twice over a period of about three years. They are wanting slightly less than the total, but this is in excess of £15,000. I cannot post exact figures as I would like to remain as anonymous as possible. Their offer does state the amount although I have left this out in post #10 above.

 

Regards

[steampowered]

If you want to settle based on the amount but you don't want to pay their costs, then you are actually making a lower offer than what they proposed, since the legal costs would come out of the other side's pocket. If this is what you want to propose then you would need to make your own counter-settlement offer. You can't use a Part 36 offer if you don't want to pay any legal costs.

 

A basic template would be along the lines of the below.

---

 

WITHOUT PREJUDICE SAVE AS TO COSTS

RE: CASE NO. XXXXXX

Dear Sirs

 

For the reasons set out in our earlier correspondence, I am confident that I will be successful in defending your client's claim in the above matter. Nonetheless, I am mindful of the obligations on parties, under the Civil Procedure Rules, to try to resolve their disputes. I am therefore prepared to make the settlement offer on the terms set out below.

• Within 14 days of receipt of a letter from you (on behalf of your client) accepting this settlement offer, I will pay the sum of ..... to an account nominated by you;
  
• This offer is open for acceptance only until 4.00 pm on [DATE];
  
• This offer is made in full and final settlement of the whole of your client's claim, and is inclusive of your client's costs and any interest.
  

If your client does not accept this settlement offer, I will bring the contents of this letter to the attention of the court on the issue of costs. If your client fails to do better than this settlement offer at trial, I intend to seek an order that your client pay my costs in accordance with paragraph 3.1 of the Practice Direction to CPR 46.

 

Yours sincerely

[jonji]

Dear Steampowered-thank you so much for the information and advice in the above post. I really appreciate the basic template as this is just what I needed!

 

I now have some questions that I need answers to so I can put the meat on the bones, so to speak!

 

#Do I give the offer to settle a heading such as "Counter-Settlement Offer"?

 

#Obviously I would need to expand on the reasons I would be successful in defending their clients claim ie. using the outcome of Brandon's case in the Court of Appeal. The solicitors are under the impression that my defense has no prospect of success as Brandon's case is stayed in the County Court as no further action has been taken to date. However, our case was pending the outcome of the appeal which I believe was heard last year and in which the part re defective default notices was successful for Brandon.

The judge stayed my case pending the outcome of the appeal with respect to defective DN. He pointed out that if Brandon was successful with respect to defective DN, then the case would be in my favor! The solicitors are stating that their client denies that their DN was defective. However, it has been admitted on one of the many witness statements. I also have the original DN as evidence.

 

#Is it advisable to offer more than they deem outstanding? This is with reference to "if your client fails to do better than this settlement at trial....." If so, could someone explain this further please!

 

#With respect to the part which states "my offer being made as a full and final settlement; inclusive of costs and interest etc....", should I also include that their client changes my credit reference file details, to show that the balance has been paid in full and the accounts are closed (If they accept)? Also, that this should be accepted in writing and confirmed that it has been done in writing; including the date it was done?

 

#Should I state if the offer is accepted, they, their client or any other associate company with take any other action and that I will be released from any liability?

 

#What is a reasonable time period for the offer to be accepted?

 

#With respect to costs and Practice Direction, CPR 46, para 3.1; does this apply to me as a LiP?

 

Hopefully, someone or indeed many can advise on each of these questions!

 

Thank you Steampowered et al......

[steampowered]

#Do I give the offer to settle a heading such as "Counter-Settlement Offer"? iCan do if you want, makes no difference

 

#Obviously I would need to expand on the reasons I would be successful in defending their clients claim At this stage the other side's solicitors will have already reached a view about your chances of success and it is unlikely that anything you say will convince them. Neveretheless feel free to expand on the reasons if you wish.

 

#Is it advisable to offer more than they deem outstanding? This is with reference to "if your client fails to do better than this settlement at trial....." Assuming this is a fast track case, if they are successful at trial they will be awarded legal costs. If they beat their Part 36 offer they will be awarded legal costs on an indemnity basis plus a 10% uplift. I don't want to speculate on what they would settle for, but it is possible they will be expecting the full amount plus a contribution to their costs if they think your Defence has no merit and if your financial circumstances allow. You can always just make a lower settlement offer now and raise it if you have to.

 

#With respect to the part which states "my offer being made as a full and final settlement; inclusive of costs and interest etc....", should I also include that their client changes my credit reference file details, to show that the balance has been paid in full and the accounts are closed (If they accept)? You can do. If it was me I would leave it out. This should be done anyway.

 

#Should I state if the offer is accepted, they, their client or any other associate company with take any other action and that I will be released from any liability? No, I don't see why you would need this.

 

#What is a reasonable time period for the offer to be accepted? Depends on the circumstances. 21 days is common.

 

#With respect to costs and Practice Direction, CPR 46, para 3.1; does this apply to me as a LiP? Yes, this is the paragraph that applies to LIPs. Google for the CPR and take a look.

[jonji]

Thank you steampowered......I still have some reading to do before I draft a letter for the solicitors. I need to be confident that I understand completely what I am offering and any consequences I might be up against.

 

If anyone can add to the above suggestions or offer any other advice, please do!

 

Also, is there any new stuff on Brandon and his appeal? Does anyone know if others have used Brandon as a defense re defective default notices and if they were successful at trial?

 

Regards,

 

jonji

[The Mould]

Thank you steampowered......I still have some reading to do before I draft a letter for the solicitors. I need to be confident that I understand completely what I am offering and any consequences I might be up against.

 

If anyone can add to the above suggestions or offer any other advice, please do!

 

Also, is there any new stuff on Brandon and his appeal? Does anyone know if others have used Brandon as a defense re defective default notices and if they were successful at trial?

 

Regards,

 

jonji

 

Brandon succeeded with his appeal!

 

Kind regards

 

The Mould

[The Mould]

Dear Steampowered-thank you so much for the information and advice in the above post. I really appreciate the basic template as this is just what I needed!

 

I now have some questions that I need answers to so I can put the meat on the bones, so to speak!

 

#Do I give the offer to settle a heading such as "Counter-Settlement Offer"?

 

#Obviously I would need to expand on the reasons I would be successful in defending their clients claim ie. using the outcome of Brandon's case in the Court of Appeal. The solicitors are under the impression that my defense has no prospect of success as Brandon's case is stayed in the County Court as no further action has been taken to date. However, our case was pending the outcome of the appeal which I believe was heard last year and in which the part re defective default notices was successful for Brandon.

The judge stayed my case pending the outcome of the appeal with respect to defective DN. He pointed out that if Brandon was successful with respect to defective DN, then the case would be in my favor! The solicitors are stating that their client denies that their DN was defective. However, it has been admitted on one of the many witness statements. I also have the original DN as evidence.

 

#Is it advisable to offer more than they deem outstanding? This is with reference to "if your client fails to do better than this settlement at trial....." If so, could someone explain this further please!

 

#With respect to the part which states "my offer being made as a full and final settlement; inclusive of costs and interest etc....", should I also include that their client changes my credit reference file details, to show that the balance has been paid in full and the accounts are closed (If they accept)? Also, that this should be accepted in writing and confirmed that it has been done in writing; including the date it was done?

 

#Should I state if the offer is accepted, they, their client or any other associate company with take any other action and that I will be released from any liability?

 

#What is a reasonable time period for the offer to be accepted?

 

#With respect to costs and Practice Direction, CPR 46, para 3.1; does this apply to me as a LiP?

 

Hopefully, someone or indeed many can advise on each of these questions!

 

Thank you Steampowered et al......

In the light of the Brandonauthority being qualified by the Court of Appeal, the Claimant’s claim must fail on the grounds of thedefective default notice that you rely upon in your Defence. Therefore, you are not liable forClaimant’s costs!

Game over for Claimant and his costs incurred to as of thedate hereof, and this puts you in anadvantageous position to negotiate a settlement that is more realistic asregards your means, that is of course if you want to engage them in suchnegotiations or make an application to strike out their claim on the groundsstated above, which the judge acknowledged when this matter was stayed pendingthe outcome thereof, which are indeed in your favour.

Since the Claimant terminated via the statutory route inreliance of the defective DN served and he cannot now proceed to enforce theagreement, this leaves him in no man’s land/in limbo, there is no live contractextant between you and him.

It’s your call on this matter.

Kind regards

The Mould

[jonji]

Thank you The Mould for the information above.

 

If I was to make an application to strike out the claim on the grounds mentioned above, could the claimant still come back with a fresh claim after issuing a new default notice? Interestingly, the claimant's solicitors mentioned that as the agreement actually expired over a year ago, their client is now due all money owing to them as of right and that they are therefore not required to serve a dn under sec 87.

 

I need this clarifying while I am considering my options.

 

Regards,

 

jonji

[The Mould]

Thank you The Mould for the information above.

 

If I was to make an application to strike out the claim on the grounds mentioned above, could the claimant still come back with a fresh claim after issuing a new default notice? Interestingly, the claimant's solicitors mentioned that as the agreement actually expired over a year ago, their client is now due all money owing to them as of right and that they are therefore not required to serve a dn under sec 87.

 

I need this clarifying while I am considering my options.

 

Regards,

 

jonji

Read thejudgement handed down in the Brandon appeal for clarification as to yourposition in this matter now and the unmeritorious claim issued by the Claimantin the light of such.

Theagreement was extinguished and all subsequent terms and conditions thereof includingthe expiry date were extinguished therewith, when the creditor terminated it via thestatutory route of s.87(1) CCA 1974 (as amended) in reliance of the defective default noticeserved. Therefore, his contentions now as to expiry of theagreement are wholly groundless.

Further,his CPR Pt 36 offer is not valid, becauseit relates to a claim that cannot, as a matter of law, proceed any further.

Put theabove points to his sols and invite their client to discontinue with his claimas it is now established and settled law that he cannot proceed to enforcementof the agreement upon which he relies,which, for the avoidance of any doubt, isno longer live and has been non-extant since (put date theyterminated).

Drawtheir client’s attention to the positive comments made by the judge as regardsyour case and that he would have to find in your favour pending the outcome ofthe Brandon appeal, when he stayed thismatter until that appeal was decided.

Kindregards

TheMould