Settlement, and undertaking not to make criminal complaint

[skwdenyer]

I'm peripherally involved with the settlement of a commercial dispute.

"My side" (in the sense of the party I know) was threatened by the other side's lawyer with a claim for repudiation of a contract. In return, "my side" proposed to counter-claim for a much more substantial amount in damages and compensation. The parties have agreed in principle to settle on a nobody-pays-anybody-anything basis.

The only issue now remaining is that the other side may (or may not) have done things in the course of breaching the contract which might amount to criminal behaviour (or might not - as ever, there are seldom blacks and whites in the breakdown of contracts).

The other side want an undertaking from "my side" not to make any criminal complaints about this issue, now or in the future. Setting aside the issue of enforceability (one presumably cannot be bound by a civil contract not to make a criminal complaint?), am I right in thinking that in general this is a bad idea to have in writing as it might (in another place at a different time) look as if "my side" blackmailed the other side into accepting a settlement?

If so, how might one go about reassuring the other side that no such criminal allegations are contemplated?

[TooMany2cvs]

skwdenyer said:

The other side want an undertaking from "my side" not to make any criminal complaints about this issue, now or in the future. Setting aside the issue of enforceability (one presumably cannot be bound by a civil contract not to make a criminal complaint?), am I right in thinking that in general this is a bad idea to have in writing as it might (in another place at a different time) look as if "my side" blackmailed the other side into accepting a settlement?

Sorry, THEY want an undertaking from YOU not to make a complaint about criminal behaviour THEY might have committed - and YOU're worried that YOU might look bad with that in writing?

Am I missing something? Merely asking for it is tantamount to them admitting they know damn well they crossed the line.

B'sides, you're coming out of this down, if anybody is, are you not? You were going to claim for more, but it's all panned out level?

[skwdenyer]

TooMany2cvs said:

Sorry, THEY want an undertaking from YOU not to make a complaint about criminal behaviour THEY might have committed - and YOU're worried that YOU might look bad with that in writing?

Am I missing something? Merely asking for it is tantamount to them admitting they know damn well they crossed the line.

B'sides, you're coming out of this down, if anybody is, are you not? You were going to claim for more, but it's all panned out level?

You're right in your analysis. However, it seems to me that the problem comes down the line if they decide to make a claim along the lines of "these guys threatened to report me for something, so I accepted a settlement" and make a complaint of extortion. One doesn't necessarily wish to be dragged into the gutter

[pork911]

Pay for good advice but my gut reaction would be a huge no thanks to that undertaking.

[zzzzzzzzzzzzzzz]

pork911 said:

Pay for good advice but my gut reaction would be a huge no thanks to that undertaking.

This. They sound frightened that you're going to accept the settlement then report them anyway. Make it clear you have no intention of doing so (assuming you don't), and they've then successfully sussed out your position and I hope would settle.

[gus607]

Sue em for what you can get OP, not forgetting "Whiplash" as well !

[JustinP1]

skwdenyer said:

If so, how might one go about reassuring the other side that no such criminal allegations are contemplated?

Just tell them you don't involve the police, as you prefer to take matters into your own hands.


Then, when the local foxes have dug up their lawn, they will realise the rotting sausages was the ungodly smell they have been experiencing, and they will accept your overarching power over their lives with the undying assistance of PH.

[ging84]

it seems like they came to you with a claim, they can either drop it or continue, continuing seems like they would be worse off than dropping it, so why do you need to sign away any of your rights for them to do the sensible thing?

[TooMany2cvs]

skwdenyer said:

if they decide to make a claim along the lines of "these guys threatened to report me for something, so I accepted a settlement" and make a complaint of extortion.

Should be straightforward - "And here's the letter where they introduced this clause and asked me to agree to it"

[skwdenyer]

TooMany2cvs said:

skwdenyer said:

if they decide to make a claim along the lines of "these guys threatened to report me for something, so I accepted a settlement" and make a complaint of extortion.

Should be straightforward - "And here's the letter where they introduced this clause and asked me to agree to it"

Indeed... If they could be persuaded to put that request on writing then this wouldn't have been an issue

[Jasandjules]

Is any such clause inserted into a compromise agreement?

[TooMany2cvs]

skwdenyer said:

Indeed... If they could be persuaded to put that request on writing then this wouldn't have been an issue

If they haven't made it in writing, they haven't made it.

[Cyberprog]

I'm not sure if any such clause would be enforceable anyway.

[skwdenyer]

Jasandjules said:

Is any such clause inserted into a compromise agreement?

This is the question under debate. Does inserting it into such an agreement in the absence of a document requesting it run the risk of later being reinterpreted?

[skwdenyer]

TooMany2cvs said:

skwdenyer said:

Indeed... If they could be persuaded to put that request on writing then this wouldn't have been an issue

If they haven't made it in writing, they haven't made it.

Whilst in an ideal world all meetings would be minuted, etc., that's not quite the way negotiations always proceed...

[Jasandjules]

skwdenyer said:

Jasandjules said:

Is any such clause inserted into a compromise agreement?

This is the question under debate. Does inserting it into such an agreement in the absence of a document requesting it run the risk of later being reinterpreted?

No.

General compromise agreements can be obtained which set out many variables which are not relevant and have not been discussed before. The absence of discussion in relation to any specific clause has no bearing.

Also, the only time such an agreement would be reviewed would be in the event of one party seeking to enforce it i.e. a breach by the other party. Absent that, the document is to all intents and purposes "Top Secret", you can't discuss it with friends and family even (subject to the terms of it of course, some firms even try to preclude spousal discussion!).

[London John]

I've executed a LOT of these agreements, and have never seen, nor would countenance, such a clause.

Stay well away. If it's financial services related, tread very carefully. Your obligation is to the regulator above all, and they take it seriously, as they should.