Sent without prejudice documents with claim - help! ** RESOLVED **

[annie42]

Hi - I submitted a money claim and included copies of two letters from the defendant marked without prejudice. I also included a copy of my reply in which I referred to the offer they had made and mentioned the offer in my particulars of claim. Can anyone tell me if I can request to remove the letters and amend the claim. If so which form should I complete? They are defending the claim and have asked for them to be removed.

[AndyOrch]

Thread moved to the appropriate forum.

 

Regards

 

Andy

[steampowered]

How did you include attachments to a claim submitted online? I'm not sure I follow what has happened here.

 

 

Anyway, I don't think it is a disaster to be honest. If genuine WP correspondence (i.e. it must be a genuine attempt to settle the dispute) has been sent to the court, the judge will disregard it. I don't think you would need to actually amend your claim.

[annie42]

Hi - I have seen a solicitor who says I must amend the claim by completing an n244 application. I need some help though as I need to send it tomorrow ie Monday. (My claim was not an online one.) Can someone tell me re the WP correspondence I mistakenly included should I submit all the evidence again minus those letters? Also I have completed box 3 saying why I need to amend but don't know what, if anything I need to put in box 10 "what information will you be relying on, in support of your application" other than my signature. This form seems to be a "one size fits all" type of form and I don't think I need to put anything but am not entirely sure.

[steampowered]

An N244 (and its accompanying fee) will not be necessary if you get the written consent of the other side. Refer to http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17/ and the Practice Direction linked on the same page. The normal approach would be to write to the other side asking their consent to amend the POC.

 

What do you mean when you say the WP correspondence was 'included'? Did you attach it at the back of the claim form, or refer to it in the Particulars of Claim, or something else? And why the urgency to get something in by Monday?

 

N244 is a one-size-fits-all form. In Box 10 you'd need to briefly explain why you are making the application to amend your Particulars of Claim. You'd also need to attach the revised POC you are wanting to use.

[citizenB]

Oh I see what has happened, not only have you included the letters, but you have referred to them in the claim ?

[citizenB]

It would be more helpful if you were to give us more information.. eg.. what is the claim in respect of especially as it appears as though you are the claimant in this instance and were these WP letters offers to settle ?

 

Is the defendant an individual or a company ?

[annie42]

Have decided to answer question 10 by saying a request for deletion of wp references was made by the defendant. Re the letters in the bundle of evidence that are marked wp I am thinking I should obliterate all the text and underline it in red. Then mark the front of the bundle with amended claim under cpr rule etc in red on the front of the bundle. Is this the right thing to do please?

 

Sorry wrote the above and posted before I spotted the last two replies. Have to stop for a while but will answer in a while. I do appreciate any help you can give.

[annie42]

Hi - back again. My limited company is the claimant for breach of oral contract. I believe I have a strong case as I have substantial documentary evidence in the form of emails that prove I had commenced work and was liaising with their staff and providing them with information they required in advance of the actual work being carried out on site ie the dressing of show homes. The defendant cancelled and said no contract existed as no order number had been issued.

 

 

I provided them with copies of almost two hundred invoices I'd issued previously with no order numbers noted on them as evidence of my entitlement to rely on oral instruction. They then made a WP offer which was derisory so I issued a claim. They are defending the claim and have asked for removal of references to without prejudice correspondence which was included in the bundle of evidence and reference to it in the particulars of claim.

 

Have completed the n244 now but am unsure about what to do about the WP letters as per my question in my last post. Would appreciate some help with this.

 

The solicitor I saw on Friday told me to amend the claim but it wasnt until I sat down to look at what I need to do that I had more detailed questions.

 

He know of this particular company and says they have a policy of defending claims but he's pretty sure they will settle just before the date the court will set.Thanks

[citizenB]

However, my understanding based on your comment that their offer was derisory is that it wasnt a genuine offer and therefore the WoP status is meaningless.

 

"Without Prejudice" is used to protect negotiations and any letters marked in this manner must be genuine attempts to settle a dispute, if they are not then "without prejudice" is meaningless.

 

The "without prejudice" rule is "a rule governing the admissibility of evidence founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish."

 

Its purpose is to protect privileged content so merely typing it at the head of a letter that is not a genuine attempt to settle will mean the document will not actually enjoy privileged status and will not be protected from disclosure."

 

I am sure others will be able to advise in good time - we are all volunteers and have day jobs and families.. so input will probably be later on today/early tomorrow

[annie42]

Thank you citizenB. They only offered half of what I am claiming as I did not complete the work which was not my fault, I was willing and able to do it. I maintain that I should be left in the financial situation I would have been in if they had not breached the contract. The solicitor I saw on Friday said I should amend it. The defendant has specifically requested it in their defence statement. I have to amend anyway because the claim was addressed wrongly. They have a few companies under an umbrella. I still don't know how to tackle removing the WP letters. I think the right thing to do is submit the whole bundle of evidence again but with the text on the relevant WP reference letters obliterated and underlined in red?

[annie42]

Hi - am struggling to find out what the fee is for submitting a n244. Can someone help me with this please?

[Mike_hawk]

Does the crux of your case rely on its wp correspondence or could its merits be judged with its exclusion?

[steampowered]

If they have provided written consent to the amendment you don't need an N244. As per the link I posted earlier:

 

2) If his statement of case has been served, a party may amend it only –

(a) with the written consent of all the other parties; or

(b) with the permission of the court.

 

Refer to http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17/pd_part17 for rules on form. In a case like this I would just replace the thing with a clean version rather than striking and underlining the deleted text. The fee for an N244 is 155, I think. Call the court if unsure.

 

You will need court permission through an N244 to change the Defendant company though.

[annie42]

Does the crux of your case rely on its wp correspondence or could its merits be judged with its exclusion?

 

No. I have sufficient email evidence to support my case.

[annie42]

If they have provided written consent to the amendment you don't need an N244. As per the link I posted earlier:

 

2) If his statement of case has been served, a party may amend it only –

(a) with the written consent of all the other parties; or

(b) with the permission of the court.

 

Refer to http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17/pd_part17 for rules on form. In a case like this I would just replace the thing with a clean version rather than striking and underlining the deleted text. The fee for an N244 is 155, I think. Call the court if unsure.

 

You will need court permission through an N244 to change the Defendant company though.

 

Many thanks for all your help. I do need to change the defendants name so will send the N244 off today.

[annie42]

Hi - I sent the N244 yesterday with the requested changes including deletion of references to WP. The request was made in the defence statement that came from the court along with the notice of proposed fast track allocation and the directions questionnaire. The notice of proposed allocation says I must complete the questionnaire by 19th May and attempt to agree directions with the other party. I have received a letter from the defendant today attempting to agree directions. It suggests:

1) Stay for four weeks to allow Mediation ( to which I will agree)

2) Disclosure on a standard basis within 5 weeks of the end of stay ( not sure what that means?)

3) Witness Statement of witnesses of fact within 4 weeks of disclosure. Neither party to be able to call any witness whose statement has not been served in accordance with this Direction. ( In this instance is the definition of witnesses those who were present when the oral instruction was given?)

4 Hearing half day 5 weeks later.

 

Apart from my questions about 2 & 3 I'd like to know if I should wait for acceptance of the N244 application before I respond to the defendant and fill in the directions questionnaire? Thanks

[steampowered]

Hi, you are supposed to serve a copy of the N244 together with any written evidence submitted with it on the other side, if you haven't done this already.

 

Disclosure on the standard basis means that each side must disclose:

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

© the documents which he is required to disclose by a relevant practice direction.

 

Generally, you'd have to provide the other side with a list of each document in one of those categories and let them have a copy if they ask. Note that each side must provide documents which support the other side's case.

 

Witnesses of fact basically means everyone except someone who is being called in a professional capacity as an expert witness (e.g. an independent accountant or surveyor). It will encompass anyone who you wish to call in order to give evidence. As you are in fast track, the rules on hearsay will apply. The expectation will be that you if you wish someone to give evidence of something you call them as a witness (i.e. you can't just provide a written statement from that person).

 

Before agreeing to the directions I would be tempted to wait until the N244 has been accepted, or say that you will be prepared to agree to the directions subject to the N244 being accepted.

 

A half day hearing in the fast track will be several grand in legal costs. Be aware that you will be liable for the other side's legal costs if you lose. As this is fast track I would strongly suggest issuing a Part 36 offer to put pressure on the other side and protect your position on costs (you can google to find out what this means).

[annie42]

Hi - When I made the claim I supplied three separate groups of evidence to support my case 1) Quotations and invoices 2) Copies of correspondence following submission of invoices after breach of contract 3) Evidence ( emails and faxed order forms) that prove I had commenced work and was liaising with them with regard to their requests for my choices for kitchens, wardrobes, tiles etc. I was copied into an email between the Sales Manager and the QS in which she stated to him "xxxxxx xxxxx" will be doing the interiors.

 

When I submitted the N244 I sent the copies of correspondence again but with the WP references obliterated. So I think I have already supplied all the evidence I have. I don't know what else I could send them. Sorry if I seem ignorant. It's because I am where this kind of thing is concerned! However I do understand about Part 36 offers. My solicitor ( who is now on holiday) having read my evidence is convinced they will settle before the due court date and has ruled out making them an offer.

 

Re witnesses I telephoned one of my employees immediately after the presentation of the show home schemes to two of the defendants sales managers to tell her we had been awarded the contract. In addition she worked on the project with me for the three months prior to the breach. Does she qualify as a witness?

Edited April 29, 2014 by annie42

[steampowered]

It sounds like you may have provided everything already in which case there wouldn't be much need for further disclosure. However be aware that at the disclosure stage you are required to disclose things such as internal emails between you and your team, if they relate to the case.

 

Yes, the employee would count as a witness, if you want to use her. Anyone you will use to provide evidence about what happened is a witness.

[annie42]

Many thanks for your help steampowered, I'm very grateful. I will google info on disclosure and witness statements before I do anything else.

[Ganymede]

Your standard disclosure will have to be on Form N265 don't forget.

 

You must comply with the Court's Directions by filing and serving the Directions Questionnaire regardless as to whether you have heard back in relation to your N244.

 

I would have probably included in the Directions that the Claim Form and Particulars of Claim be amended as per the attached draft and add a direction for the Defendant to amend their Defence within 14 days for example.

 

Also remember your own witness statement as well as your employees.

 

Did you say you had solicitors acting for you? If so these are the questions you should be asking them as you're paying for their professional, qualified legal advice.

[annie42]

Your standard disclosure will have to be on Form N265 don't forget.

 

You must comply with the Court's Directions by filing and serving the Directions Questionnaire regardless as to whether you have heard back in relation to your N244.

 

I would have probably included in the Directions that the Claim Form and Particulars of Claim be amended as per the attached draft and add a direction for the Defendant to amend their Defence within 14 days for example.

 

Also remember your own witness statement as well as your employees.

 

Did you say you had solicitors acting for you? If so these are the questions you should be asking them as you're paying for their professional, qualified legal advice.

 

Hi - unfortunately my solicitor is on holiday! I don't send the N265 yet though do I? Am just filling in the Directions Questionnaire at the moment. I assume the witness statements are also supplied at a later date ? In section F of the directions questionnaire I have summarised "witness to which facts" as:

1) Entitlement to rely on oral instruction

2) Issue of oral instruction

3) Work performed by claimant

4) Liaison between both parties following oral instruction

 

I think I should reply to the defendants letter saying I agree to the contents of their letter subject to acceptance of the N244 application. Re the N244 I provided the court with a copy of the amended evidence for the defendant.

 

Just out of interest re their defense they say there was no contract and I had only "prepared various details for submission as part of a quotation". This is a blatant lie as the two sales managers to whom I gave the presentation both declared simultaneously "You've got the job!" Does an oath have to be taken in this type of court case?

Edited May 5, 2014 by annie42

[annie42]

Hi - the court has accepted the N24 and has written giving notice of a Case Management Conference to consider the request for a stay for mediation. I have been reading up on Part 24 - Summary Judgement. If I understand correctly the Judge has the power to strike out the case if he believes the defendant has no reasonable prospect of success.?The defense is that no contract existed between us. I have lots of email evidence to the contrary but one in particular that I was copied into when the Sales Manager wrote to the Quantity Surveyor stating "xxxxx xxxxx will be doing the interiors". I know I'm biased but I fail to see how they have a defense in view of that one email alone. Could someone tell me if I can apply a summary judgment or apply for their statement of case to be struck out?

Edited May 30, 2014 by annie42

[annie42]

This morning I have received a letter from the defendant. They are suggesting that because a telephone conference for mediation has already been arranged for 8th July there is no need for a Case Management Conference and have enclosed an Consent Order for me to sign and send to the Court. I'm inclined not to agree but would value any opinions please.