‘Without prejudice’: possible settlement until 7 days after ‘intend to defend’ deadline

[oleg]

Someone I am helping has received a solicitors’ ‘without prejudice’ letter offering a possible discount on a claim if contacted by a date 7 days later than the CCBC acknowledgment deadline. ‘If we do not hear from you by then, judgment may be sought without further notice.’

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I interpret the suggestion of a settlement as a sign of weakness.

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EITHER: they know the defendant, who is on benefits, would not be ordered by the court to pay anything more than token amounts, so they have no serious intention to proceed with the claim

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OR: they want to avoid the court fee (more than £400). . In fact, the defendant intends to defend but the solicitors do not yet know this, so we can’t assume that they have built into their calculations questions such as a dodgy CCA, DN etc..

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I have seen several cases where a defendant has acknowledged service of a claim form beyond the 14 day deadline, sometimes even well beyond, so long as the claimant has not proceeded to seek judgment.

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My questions are:

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1 Do my assumptions regarding the settlement offer make sense?

2 Do CCBC routinely accept acknowledgment of service beyond the 14 day deadline?

3 If the solicitor were to attempt to sneak in a CCJ request during the 7 days’ ‘grace’ implied in their WP letter, could the defendant nevertheless expect to be allowed to produce the letter as evidence to obtain set-aside for this abuse of process?

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The defendant is anxious that I do not name the claimant or solicitor. Suffice it to say, the claim is from a debt buyer.

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Responses from those with greater legal expertise than me most welcome. Thanks.

[Guest]

stick to court deadlines to be safe.

prob wont make any difference if ack service with intent to defend as that gives another 14 days, ie would cover their 7 days. if dont accept their offer, then submit a defence in time. can still negotiate.

and then up to them whether to apply for sum judgment (no default judgment) or not.

[oleg]

Thank you Ford.

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We are aware of the 14 days to prepare a basic defence after acknowledging service. However the defendant's circumstances make it impossible for him and I am struggling to manage my own commitments.

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He will definitely not be accepting their "offer".

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Can someone answer the 3 specific questions in post #1 please?

[Guest]

if definitely not accepting their offer, then why worry about ack after the first 14 days and their offer deadline being '7 days' after the acknowledgment deadline?

theres no abuse of process.

just ack in time with intent to defend. they cant then 'sneak' in a default judgment as said.

can still negotiate/counter offer. defend, or admit and come to an arrangement?

[oleg]

I thought that if solicitors were to sneak in a judgment by default during the period in which they had professed to be amenable to offers it might be considered abuse of process.

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I am, of course, aware that acknowledging within the requisite 14 days prevents the opposition from doing anything for a further 14. However, that is not what I was asking about.

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To cut to the chase, I may well be able to help the guy if there were those 7 extra days to craft his defence. It's fairly complicated, I can't just pull one off the peg. In the intervening 14 days, I don't have spare capacity at all. So my original 3 questions still stand.

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Perhaps someone else experienced in this area might offer their opinion.

[Andyorch]

If its his intention to defend in full why is 7 days so critical....? He has 33 days in total to draft and submit?

[Ganymede]

1. Do not assume anything. Settlement offers aren't always a sign of "weakness."

 

2. They do sometimes but it is risky as the Claimant might be on the ball and request default judgment straight away.

 

3. No that would not be an abuse of process. Their own made up 7 days has nothing to do with the Court deadline.

[oleg]

Thanks Gentlemen

Taken on board and I'll convey advice

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Andy - The 7 more days matter to him since he has enduring ill health preventing him from addressing stressful matters. Half the 33 days have already elapsed. And I simply don't have spare capacity to take this on. Many thanks anyway , I will endeavour to sort something out for him one way or another.

[Andyorch]

I have Acknowledged 3/4 days late and been ok ...I have also submitted a defence 3/4 days after cut off and it was accepted..the trick is to keep your eye on the status on MCOL.

 

As already stated it very much depends on the Claimant/Court and how fast off the mark they are ...but its very risky

[oleg]

Andy Yes I agree it’s a risky strategy and that’s why I was seeking further opinion. I have finally, with the help of this thread as back-up, to convince the person to acknowledge service, so he has. I wonder though how the court would react in the event of a solicitor seeking judgment during the ‘grace’ period (offering to discuss a settlement) implied in their WP letter. The exact wording is that ‘unless we hear from you before [date], judgment may be entered against you without further warning’. Do you know what the legal position would be in the event of a defendant using this as grounds to request set-aside? Is it, as I believe, at the judge’s discretion, based on the circumstances of the case (and his/her mood)? Sorry about no paras - it won't let me format.

[oleg]

Ganymede You said a settlement offer might not be a sign of weakness. Whilst accepting your opinion, I am struggling to understand why a creditor or their solicitors would make a settlement offer if they thought they could use the court to obtain the full amount. Sorry if I’m missing something obvious, but could you kindly enlighten me.

[Andyorch]

As long acknowledgement is submitted ...with an intention to defend then the claimant cant get judgment until the 33rd day....if a defence cant be submitted within 33 days then they may as well admit.

 

Once the defence has been submitted a further 28 days and potentially stayed indefinably... will allow all the time in the world to mediate.

 

AOS...& Defence then the claim is secure.

 

With regards to your question to Ganymede...sometime its simply not viable to litigate...hence the need for settlement...but its not a sign of weakness on the Claimants behalf.

 

Regards

 

Andy

[oleg]

Yes I know he has 33 days in total. His concern is health preventing constructing a defence. Certainly has no intention to admit a pre-2007 debt for which co. in question is renowned for often not having original CCAs. I'll maybe cobble together a quick sharp holding defence to keep the lions at bay for him.

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As for your footnote, maybe we're just talking semantics. Non-viability is included in my notion of weakness, along with such factors as debtors who can't pay, as well as unenforceable or missing CCAs / default notices etc.

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Thanks again for your responses.

[Ganymede]

Ganymede You said a settlement offer might not be a sign of weakness. Whilst accepting your opinion, I am struggling to understand why a creditor or their solicitors would make a settlement offer if they thought they could use the court to obtain the full amount. Sorry if I’m missing something obvious, but could you kindly enlighten me.

 

The solicitors will want the claim settled as quickly as possible and so will be prepared to offer a discount. It makes sense to do so on a commercial basis as the longer the case goes on the higher the legal costs that will be incurred etc.

 

It is also sensible on a legal basis as there is always what is known as a 'litigation risk' meaning no matter how strong they think the case is Judges are an unpredictable lot so you can never be 100% sure of winning.

[oleg]

Yes you're right, though what benefit they might derive from pursuing someone on state pension credit and without assets is beyond me. He felt he would not be taken to court on this basis.

I suspect that the claimant may drop the case, particularly when they receive his CCA request, one for which I very much doubt the original cannot be found. They would simply be wasting resources.

As for judges, well yes. Defendants are often at the mercy of quite fickle and biased individuals who allow feelings to overcome their duty of impartiality. I sat and watched in horror as one judge rejected an asylum seeker's case, when I knew that the poor guy would be deported to face jail [proper jail, not UK style closed hotel with satellite TV and hot meals] and horrific torture. But I digress . . .

Another question please, to which I ought to know the answer but sadly don't. Why would they have sent the negotiation offer W P?

[Ganymede]

Yes you're right, though what benefit they might derive from pursuing someone on state pension credit and without assets is beyond me. He felt he would not be taken to court on this basis.

I suspect that the claimant may drop the case, particularly when they receive his CCA request, one for which I very much doubt the original cannot be found. They would simply be wasting resources.

As for judges, well yes. Defendants are often at the mercy of quite fickle and biased individuals who allow feelings to overcome their duty of impartiality. I sat and watched in horror as one judge rejected an asylum seeker's case, when I knew that the poor guy would be deported to face jail [proper jail, not UK style closed hotel with satellite TV and hot meals] and horrific torture. But I digress . . .

Another question please, to which I ought to know the answer but sadly don't. Why would they have sent the negotiation offer W P?

 

Negotiations and offers are usually without prejudice so they can't be disclosed to the court.

 

There's nothing in it so wouldn't waste time dwelling on it.

[oleg]

No intention of dwelling, much less seeking to somehow "exploit" it. Just I find it a curious convention, particularly given that parties are expected to show willing to negotiate - yet send W P letters which prevent them from demonstrating that they've done so.

[Ganymede]

No intention of dwelling, much less seeking to somehow "exploit" it. Just I find it a curious convention, particularly given that parties are expected to show willing to negotiate - yet send W P letters which prevent them from demonstrating that they've done so.

 

The negotiations are between the parties and should not been shown to the court until the claim has been decided and the issue of costs arises.

 

It encourages the parties to negotiate.