Use of 'Without Prejudice' with a full and final offer?

[Turned worm]

Please feel free to sub if this should be elsewhere.

I understand 'Without Prejudice' on a letter means that the document cannot be used in court?

In the context of full and final settlement offers to creditors, I assume it protects the debtor from creditor claims of admission of liability? If a creditor were to break the terms of a settlement agreement, would it not be better if the agreement wasn't marked 'Without Prejudice' so that the debtor can use this document as evidence in court to prove that the creditor broke the terms associated with acceptance of the offer?

(Also are 'ex gratia' and 'gesture of goodwill' synonymous?)

Thanks.

TW

[Never-In-Doubt]

Re: Use of 'Without Prejudice' with a full and final offer?

It's your call whether you say it or not - personally I wouldn't as it shows a judge you're happy to pay *something* and aren't a debt dodger.

There isn't really a right or wrong - it's entirely your call.

[julian]

Re: Use of 'Without Prejudice' with a full and final offer?

Extending this a bit..... An F&F would restart the SB clock as it admits there is debt. Even if the alleged debt is disputed and F&F was offered it is just to stop 40 phone calls week.

Any views on the standing of an F&F offered after a CCJ? CCJ never dies but is made toothless aft 6 years without enforcement. Is anything altered by offering an F&F?

[Never-In-Doubt]

Re: Use of 'Without Prejudice' with a full and final offer?

The logic is with a CCJ post 6 years; they'd need to convince a judge that enforcement was suitable. Unlikely.

Regards your question, yes it'd affect it as would making payments - it's more a case of the CCJ holder needing to make contact within 6 years from judgment.

[PlanB]

Re: Use of 'Without Prejudice' with a full and final offer?

If a creditor were to break the terms of a settlement agreement, would it not be better if the agreement wasn't marked 'Without Prejudice' so that the debtor can use this document as evidence in court to prove that the creditor broke the terms associated with acceptance of the offer?

According to this information from Bird & Bird LLP if the terms of an accepted F & F are carried out then contract law kicks in and the Without Prejudice letter may be admissible in court.

"Dispute following acceptance of WP offer: An agreement reached as a result of WP negotiations will become a binding contract as soon as a WP offer is accepted and as such will be subject to the ordinary principles of contract law. In the event that a dispute arises as to the existence of a settlement or its terms, the content of the WP negotiations may be admissible for the purpose of determining whether a settlement was agreed and on what terms."

http://www.twobirds.com/~/media/PDFs...0Prejudice.PDF

I also have a personal fondness for the legal principle of "estoppel" but that takes a bit of explaining. In a nutshell once an agreement has been reached then both parties are stopped ("estopped") from applying to the court to get a better deal.

https://en.wikipedia.org/wiki/Estoppel_in_English_law

Based on the above I would head any F & F letter "Without Prejudice Save as to Costs" even if it's a debt below the County Court Fast-Track limit because costs can be awarded in the Small Claims Court if there have been conduct issues by either party.

Plan B x

[julian]

Re: Use of 'Without Prejudice' with a full and final offer?

For clarity:

Several site members have CCJs where no payment schedule is in place and/or payments have not been made. Creditors may have sent letters asking for money but received no reply. So CCJ is not being paid.

Then the 'debtor' so called by dint of the CCJ, (un)fairly gained, wants to borrow, but cannot with CCJ unsatisfied. So F&F offered and refused by CCJ holder, who says pay me everything now.

What does the F&F offer/refusal constitute?
It does not strike a contract as it was refused by the creditor, and 2 parties are needed in a contract.
It does not form enforcement action, as the creditor just sends threats
It cannot be admission as the CCJ already covered that aspect and the CCJ trumps any CCA or agreement.

Does it just sail along as before?
Does it restart the 'enforcement' clock?
Does it do any more than potentially awake the creditor?

[Never-In-Doubt]

Re: Use of 'Without Prejudice' with a full and final offer?

As explained, the onus is on the creditor to seek enforcement of the Judgment within 6 years - if they don't then they will struggle to enforce. There is no 'Time Barred' clock element to a CCJ as in for you, but there is for the creditor (or the judgment holder) - this is 6 years. So regardless if you make an offer or don't - they still have 6 years to enforce. After that then they need to convince a judge, regardless of whether you've made offers or not in the past.

A judge is likely to refuse enforcement based on them having 6+ years to do it previously.

[julian]

Re: Use of 'Without Prejudice' with a full and final offer?

Ta. Sometimes the shorthand causes confusion.

I m sure the words are comforting to quite a lot of your stressed followers.

[still having robs with Windows 8.1 and IE 11.on posts. How is W10?

[Never-In-Doubt]

Re: Use of 'Without Prejudice' with a full and final offer?

Based on the above I would head any F & F letter "Without Prejudice Save as to Costs" even if it's a debt below the County Court Fast-Track limit because costs can be awarded in the Small Claims Court if there have been conduct issues by either party.

Plan B x

I wouldn't - never have, never would and never lost a case (involving an offer) to date - but that's the thing - as I previously said, it is unique and specific to each individual person and case. It really makes no difference because you can admit a 'without prejudice' to the court, so why bother? Once a F&F is agreed we stick to the rules based from Penny v Cole - see here for refresher --> http://www.lawteacher.net/lecture-no...-lecture-2.php

[Never-In-Doubt]

Re: Use of 'Without Prejudice' with a full and final offer?

[still having robs with Windows 8.1 and IE 11.on posts. How is W10?

Bin IE & use proper browser....

[julian]

Re: Use of 'Without Prejudice' with a full and final offer?

I love the idea of sending a horse or a hawk by signed for delivery, as a consideration to some of those nasty DCAs. Would be dead of course, not killed for the purpose, but recycled. The mind boggles with ideas for 'consideration'.

[Turned worm]

Re: Use of 'Without Prejudice' with a full and final offer?

Very useful and interesting info PlanB and Niddy.

I'm not sure that I'll ever become fluent in legalese but do enjoy the logic base of the arguments/case laws - even though it does all seem tortuously convoluted at times!

[PlanB]

Re: Use of 'Without Prejudice' with a full and final offer?

It really makes no difference because you can admit a 'without prejudice' to the court, so why bother?

Because if the F & F offer isn't agreed (and they're not always) the debtor won't have acknowledged the debt for statute barred purposes if their offer was headed Without Prejudice.

This was one of the saving graces in a member's current case where a F & F was made but rejected prior to legal proceedings being issued. The Claimant couldn't disclose the debtor's WP offer as evidence of "acknowledgment" of the debt to the court when they subsequently issued a summons.

At least that's how I understand the situation to be, but I could be wrong.

Plan B x

[Never-In-Doubt]

Re: Use of 'Without Prejudice' with a full and final offer?

Oh you're saying if it's not yet SB and a claim is issued, by marking any offer "WP" that if the claim is dismissed (but not wiped); then SB continues from the last Cause of Action (CoA) because if a claim is dismissed then it's treated as though it never occurred...?

You are right - but im not really one for encouraging offers hence I didn't think of that

Gotcha

[PlanB]

Re: Use of 'Without Prejudice' with a full and final offer?

Oh you're saying if it's not yet SB . . .

Maybe what I'm trying to say in a clumsy way () is if a debt is SB due to no payments or acknowledgment of the debt for six prior years (or five in Scotland) then a Without Prejudice offer at any time along the line should not have any legal impact on the debt's SB status (as an "acknowledgment" of the debt) whether that's before or after legal proceedings have been issued or whether a claim has been dismissed or discontinued.

That's my cack-handed interpretation of the law anyway.

Plan B x