Reply to/reject a ‘without prejudice’ offer made in full and as final settlement

[Echelon_26]

Hello,

We suffered damage to property and are looking to reject the offer above.

It's just a bit lower than expected and we don't want to go to court. We are just looking to counter-offer adding about 30% to their initial offer and hope that they accept so it all can be settled.

They do have evidence, as photos of the damage were taken during the site visit.

Do we reply with a a schedule of the loss, letter of claim, or a simple email with a counter offer? Do we label this communication in any way (maybe a ''Without prejudice save as to costs settlement offer'')?

 

[Stas Lawicki]

You'll get a range of responses to this.

If it were me, I would reply in kind (keeping it WP save as to costs). Aim higher than what you want and expect to settle in the middle. I might make the response verbal in the first instance and then follow up in writing. I would be firm and suggest you are already compromising at your revised counter. If it was miles away from their offer, I might present a schedule but would most likely use that as a last resort for this phase.

Not sure if you've taken advice but perhaps you don't need to.

I would take this as a good sign. Others might disagree...

 

[Echelon_26]

You'll get a range of responses to this.

If it were me, I would reply in kind (keeping it WP save as to costs). Aim higher than what you want and expect to settle in the middle. I might make the response verbal in the first instance and then follow up in writing. I would be firm and suggest you are already compromising at your revised counter. If it was miles away from their offer, I might present a schedule but would most likely use that as a last resort for this phase.

Not sure if you've taken advice but perhaps you don't need to.

I would take this as a good sign. Others might disagree...

Thank you for taking the time to reply.

I understand that if we reply ''save as to costs'' and they refuse our counter-offer we are liable to pay their fee in court. Is that correct?

We haven't taken advice - we want to solve this fast without court action. So we're just looking for the best way to counter so that it gets accepted straight away.

 

[Stas Lawicki]

You wouldn't pay their costs unless this went before a judge and you lost and costs were part of any settlement or counter claim (is my understanding).

Unless they know they are completely in the wrong or don't have the stomach for it, or perhaps the resources etc, this offer to settle is a positive step. It might spurious to show willing but then its WP so unlikely.

Is this a business or a personal matter? Either way, perhaps you have insurance with legal cover? Sometimes it's worth having a quick chat with the insurance company panel lawyer or firm, normally without exercising all the paperwork with getting a case file etc. That way you can get a steer. I've done it a couple of times in work related situations.

 

[Echelon_26]

You wouldn't pay their costs unless this went before a judge and you lost and costs were part of any settlement or counter claim (is my understanding).

Unless they know they are completely in the wrong or don't have the stomach for it, or perhaps the resources etc, this offer to settle is a positive step. It might spurious to show willing but then its WP so unlikely.

Is this a business or a personal matter? Either way, perhaps you have insurance with legal cover? Sometimes it's worth having a quick chat with the insurance company panel lawyer or firm, normally without exercising all the paperwork with getting a case file etc. That way you can get a steer. I've done it a couple of times in work related situations.

It is a personal matter that is why the compensation is small and we feel taking advice from a lawyer may make things unnecessarily expensive in this case. We were told however that the landlord's insurance would not cover this as it's a subcontractor's fault.

 

[smallclaimsassistance]

You wouldn't pay their costs unless this went before a judge and you lost and costs were part of any settlement or counter claim (is my understanding).

Whether this is right or wrong depends entirely on the specific circumstances of your case, the evidence available to prove those circumstances, and the track to which your case has been allocated.

With absolutely no disrespect intended to anyone here, you cannot receive reliable advice from anyone (here or otherwise) without a review of the papers. To be clear, I am not fishing for work (I wouldn't have capacity at the moment anyway), but your response to this proposal could determine:

A) any settlement;
B) whether you go to trial;
C) any costs liability.

For that reason your response to this offer is critical.

If you're intent on receiving advice (and you should), and want to save money, you can get fixed fee advice on this offer and (more importantly) on your prospects, from a barrister, without having to retain a solicitor with the meter running. You need to search online for "direct access barrister". When you have found one, you'll need to send them ALL of the evidence, correspondence and court papers.

One word can change the outcome of a case, so they need to see everything.

You need to instruct them to provide advice "on liability and quantum", and they will need to know about the offer. If you don't have much time with the offer, ask your opponent for more time to consider it.

If you're minded to proceed without advice, that's your choice but I would be very careful about utilising legal terms in your correspondence unless you know EXACTLY their effect in YOUR case. Such terms can be double-edged if not used properly in the context of your case.

Dean

 

[Stas Lawicki]

With absolutely no disrespect intended to anyone here, you cannot receive reliable advice from anyone (here or otherwise) without a review of the papers.

I completely agree with this.

Laymen may handle this a number of different ways but let's not get carried away - it seems as though this is a minor matter that is highly unlikely to make it to a court room or adjudication- as the OP stated, they feel advice from a lawyer may make it more expensive than it is worth. I suspect the time already spent on this has already made it a negative sum action.

Dean is quite right to draw your attention to the nuances and necessity to seek proper guidance in the event that this matter goes beyond anything more than informality. But I also feel I have to say that minor matters (and I am not entirely sure how minor this matter is), require no input from lawyers or barristers. If your home insurance doesn't offer legal expense cover, or you feel it doesn't warrant any engagement of a lawyer at this stage, then seeking guidance from a number of different sources is entirely normal. CAB for example.

Maybe I am the wrong person to be offering any opinion on this matter, but I've been involved in plenty of actions and most required no steerage from a legal beagle. Most people are perfectly capable of sorting out minor matters and frankly, should try to themselves in the first place. How much time and money could be saved by people being reasonable and agreeing their own affairs without 3rd party intervention.

If it was serious, I am sure the OP would have the intelligence to seek appropriate counsel rather than posting on a business forum...

Whatever you decide, good luck!

 

[Echelon_26]

It's a small amount of money - therefore all we'd like to know is whether to reply to the offer with an email which will keep it ''without prejudice'', or to respond marking the email ''in open communication'' in case we actually do end up going to court. Do we even need to mark the email in any way at all?! There's no need for barristers and they wouldn't bother given the amount of money involved.

 

[ComPropSolicitor]

you need a solicitor (plain and simple) unless you are prepared to take a gamble.

 

[The Byre]

If it is such a small amount, why not just get on the phone, tell them that if they up their offer by 30% you will consider the matter closed?

They will offer 15%, you counter-offer 20% - they accept. Smiles all round!

You give them a piece of paper stating "With the full and final payment of £3.50 (in words three pounds and fifty pence) I Mervin Grimpwater do consider the damage performed by Mrs. Avagnie Codposture to our clothes-line to have been paid for and compensated in full."

 

[Michael Loveridge]

"Without prejudice" merely means that you are making an offer that can't be referred to in court. Adding "as to costs" means that it still can't be referred to in court except in relation to the legal costs.

So if you're involved in serious litigation where both sides have lawyers acting and you're being sued you could make a settlement offer of, say £50k on that basis. If it then comes to trial the other side couldn't refer to your offer, as it's WP. However, if the judge decides you should pay your opponent £40k you can then produce your offer to the judge in relation to the costs of the action.

Normally, because the other side had won and you have to pay them £40k the judge would order you to pay your opponent's legal costs. However, when he sees that you'd actually offered £50k some months earlier he's likely to order your opponent both to stand their own costs and to pay your costs from the date you made the offer.

The rationale for this is that they have wasted the court's time and caused you to run up legal bills when they should have accepted your offer.

However, this is only relevant where costs are actually an issue. If the amount in dispute is less than £10k then it'd be a small claims case, where costs aren't normally recoverable anyway. If that's the case there's no point in adding "as to costs" as it's meaningless.