Stephen Gold: ‘Without prejudice’ is not going to work in case you try to use it as a canopy for improper remarks like ‘Refuse my offer and I’ll tell a pack of lies in court. I’m a greater liar than you.’
Stephen Gold is a retired judge and writer who has written popular series for That is Money on methods to be a successful executor, writing a will, bankruptcy and consumer rights.
Partially one among his recent guide on the price of taking legal motion he explained court fees, partially two methods to cut bills, and partially three mediation.
Today, he explores further strategies to succeed in a settlement.
In a civil case, someone will win, and someone will lose. In a family case, there are regularly no winners.
Although in a civil case the parties, or one among them, could have it in mind to compromise to some extent, they could feel it’s strategically preferable to postpone investigating a settlement.
This might be until after a court case has been began and among the procedural steps which might led as much as a full trial – and there are quite just a few – have been taken.
By then, possibly with helpful documents and even witness statements having been disclosed – the opposition could also be getting cold feet. The strategy could also be right.
But every time a claim (or a defence to it) is put to the opposite side, it ought to be put as strongly as it could possibly, without exaggeration for that may backfire.
If compensation is being sought which will not be for a set amount laid down by law, it could possibly be on the upper end of what could be an appropriate range in order to permit room for negotiation, although not inflated to some ridiculous level, for that can also backfire.
Ways to succeed in a settlement: Using protocols
Before a court case is ever began, the system sets a backdrop to negotiations which is calculated to steer to a settlement.
That is by means of the parties following what is named a ‘protocol’ which suits the actual category of claim.
There are 16 different protocols for 16 different categories. You can see them in the back of the Civil Procedure Rules 1998 once you’ve finished binging in your ‘Game of Thrones’ box set.
Amongst them are protocols for claims for housing repair, personal injury, negligence by professionals (though positively not ex-judges advising on That is Money and MailOnline), package travel, business and public authority debt and construction and engineering disputes.
Each protocol requires you to send your opponent a letter setting out specified details about what you might be saying and asking for and requires your opponent to return back with an in depth response inside a period which, depending on the protocol, can vary from between two weeks to a few months.
If you happen to fail to follow the protocol and sue away, you won’t get locked up, but a judge may halt your claim until you’ve done what it is best to have done, or it’s possible you’ll find yourself having to pay the opposite side’s legal costs and expenses – or each.
Where your case will not be covered by a protocol, similar principles apply, and it is best to write to the opposite side before suing and provides them an affordable time to reply.
How long will not be forged in stone but guidelines say two weeks where the matter is easy and not more than 30 days in a really complex case.
Persuading the opposite side to settle: ‘Without prejudice’ letters
Similtaneously you send off a protocol letter of claim or, even before then, you possibly can have a stab at settling the dispute by dangling a carrot (it needn’t be organic) at the opposite side.
If you achieve this it is best to write ‘without prejudice’ at the highest of the communication.
That way, the communication can’t be used against you in court if it doesn’t result in a settlement.
Nevertheless, this protection is not going to work in case you try to use it as a canopy for improper remarks like ‘Refuse my offer and I’ll tell a pack of lies in court. I’m a greater liar than you.’ Something like this may occasionally work.
Every time a claim (or a defence to it) is put to the opposite side, it ought to be put as strongly as it could possibly, without exaggeration for that may backfire
Dear Legal Department
Re Invoice B24/1796
I actually have individually provided you with full details of your firm’s breach of contract. If I’m obliged to issue a county court claim against it, I will likely be searching for:
(a) damages for £XXX;
(b) interest on those damages at the speed of £8.00 per cent each year from the date of the breach until judgment;
(c) all court fees payable by me including the hearing fee which will likely be generated for a contested hearing;
(d) travelling expenses and lack of earnings for myself and my witnesses for a contested hearing;
(e) an allowance at the speed of £19 per hour as a litigant in person for the time spent on the claim including time at court and getting there and back on the premise that by defending the claim your firm could have behaved unreasonably in all of the circumstances of this case.
I would favor to not should go to court because I actually have higher and more productive things to do with my time.
Nevertheless, I could have no compunction about suing your firm if that be crucial.
In a spirit of compromise and with a view to a prompt resolution to the matter, I’m prepared to simply accept in full and final settlement of my claim the sum of £YYY OR I’m prepared to forgo my claim for interest provided I receive from you the sum of £ZZZ inside 14 days of the date of this communication.
This offer will lapse at the tip of that period.
In additional substantial claims, it might be to your advantage to pay attention the opposite side’s mind on negotiating by making a written offer to them to settle your claim during a case – and even before it.
That is a proposal under part 36 of the Civil Procedure Rules 1998 and I like to recommend you employ the shape fancily called the N242A to do that.
You will likely be offering to the opposite side specified terms on which you are ready to settle.
If the offer will not be accepted, details of it is going to be kept from the judge until after they’ve decided the case.
The implications for the opposite side might be dire if the offer will not be accepted, the case proceeds to a trial and the judge gives you what you were offering to simply accept or more.
They’re more likely to should pay you an additional 10 per cent on any damages you might be awarded with different percentages for a mega award of over half 1,000,000.
On top, it is best to all get well your costs from the opposite side together with interest on the damages and the prices.
Pitching a proposal at the proper level is an art and legal advice on it is strongly recommended.
Turn to an Ombudsman
There may be an ombudsman for nearly all the things although they haven’t got round to appointing a bathroom brush manufacturers’ ombudsman yet.
Amongst those most heavily in demand are ombudsmen for financial services, legal services, housing and – most recently appearing – for brand spanking new homes.
Each ombudsman’s service will normally settle on a grievance on the paperwork which is recommend by either side and so there isn’t any opportunity to tear the opposition to shreds within the witness box.
The service will likely be free and so a useful alternative to court proceedings in lower value disputes – although the housing ombudsman who deals primarily with complaints against social landlords has been issuing some really sizeable compensation awards in the previous couple of weeks.
And in case you disagree with the ombudsman’s decision then you definately can all the time reject it and make a court claim.
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