Small Claims Help - Wasting Courts Time.
Discussion
I am due in the small claims court next week with regard to a dispute over works done to a vehicle. I am unrepresented and the other part is represented by a Paralegal.
The Paralegal and I achieved settlement last week, based on paying 75% of the final bill over four installments (there idea). I am happy with that as it reflects the damage done to our vehicle and its a common-sense solution for both parties. She sent a 'Tomlin Order' through in which she had cunningly withheld any reference to the installments.
I queried this, The Paralegal said that her client had now changed their mind, and they want the settlement in a lump sum as opposed to installments.
I feel that this is sharp practice has the agreement had already been reached two days prior - it seems once we'd agreed the figure then the moved the goalposts.
Is this something that can be raised with the Judge when I attend the hearing? I have never been to a court and have no idea how this works? It seems lunacy when we have already reached agreement, the other party to do a U turn and then to waste the courts, and the judges time.
The Paralegal and I achieved settlement last week, based on paying 75% of the final bill over four installments (there idea). I am happy with that as it reflects the damage done to our vehicle and its a common-sense solution for both parties. She sent a 'Tomlin Order' through in which she had cunningly withheld any reference to the installments.
I queried this, The Paralegal said that her client had now changed their mind, and they want the settlement in a lump sum as opposed to installments.
I feel that this is sharp practice has the agreement had already been reached two days prior - it seems once we'd agreed the figure then the moved the goalposts.
Is this something that can be raised with the Judge when I attend the hearing? I have never been to a court and have no idea how this works? It seems lunacy when we have already reached agreement, the other party to do a U turn and then to waste the courts, and the judges time.
Edited by ADJimbo on Sunday 7th June 20:26
ADJimbo said:
davepoth said:
Yes, by all means bring it up. If you have it in writing, so much the better.
It is in writing but is entitled 'Without Prejudice'. "Without Prejudice" changes matters quite a bit. "Without Prejudice" usually means that it wouldn't be admissible, but if agreement has been reached and a valid contract has been formed it might then become admissible. As I say, you should really talk to a lawyer about it as it's a reasonably technical point.
Jasandjules said:
ADJimbo said:
It is in writing but is entitled 'Without Prejudice'.
Was it "save as to costs" at all?ADJimbo said:
No. It was just 'Without Prejudice' on all emails. I'm hoping that common-sense would be in play here and a small claims Judge would look for both parties have settled prior to wasting his time?
NO I am afraid without prejudice should not be referred to until the judge has made a decision. Also, costs in the small claim are limited as I am sure you are aware.
And there is no "requirement" for a party to settle a claim - in the simplest terms.
Jasandjules said:
ADJimbo said:
No. It was just 'Without Prejudice' on all emails. I'm hoping that common-sense would be in play here and a small claims Judge would look for both parties have settled prior to wasting his time?
NO I am afraid without prejudice should not be referred to until the judge has made a decision. Also, costs in the small claim are limited as I am sure you are aware.
And there is no "requirement" for a party to settle a claim - in the simplest terms.
If you have settled the claim, then you have settled the claim. If they make an offer 'without prejudice' and you accept it, then then the claim is settled on those agreed terms.
The without prejudice documentation is admissible as proof of settlement (but not liability etc).
If you have a concluded course of correspondence (if that is what you actually have) then tell the judge that. He or she should look at WP correspondence to see if that is in fact what you have. You need to do this first. The judge will hopefully look at it 'de bene esse' meaning that he will "forget" about it if it doesn't prove a concluded contract of settlement.
If you haven't settled the claim then you are back to square one. But the other side are being a trifle silly because even if you lose 100% the court may give you time to pay if it thinks it is necessary.
The without prejudice documentation is admissible as proof of settlement (but not liability etc).
If you have a concluded course of correspondence (if that is what you actually have) then tell the judge that. He or she should look at WP correspondence to see if that is in fact what you have. You need to do this first. The judge will hopefully look at it 'de bene esse' meaning that he will "forget" about it if it doesn't prove a concluded contract of settlement.
If you haven't settled the claim then you are back to square one. But the other side are being a trifle silly because even if you lose 100% the court may give you time to pay if it thinks it is necessary.
jev said:
If you have settled the claim, then you have settled the claim. If they make an offer 'without prejudice' and you accept it, then then the claim is settled on those agreed terms.
The without prejudice documentation is admissible as proof of settlement (but not liability etc).
If you have a concluded course of correspondence (if that is what you actually have) then tell the judge that. He or she should look at WP correspondence to see if that is in fact what you have. You need to do this first. The judge will hopefully look at it 'de bene esse' meaning that he will "forget" about it if it doesn't prove a concluded contract of settlement.
If you haven't settled the claim then you are back to square one. But the other side are being a trifle silly because even if you lose 100% the court may give you time to pay if it thinks it is necessary.
I have an email trail of over 34 pages to show the court. In that we reach settlement, I agree to it and ask for the Tomlin Order. She then responds back with the order and that's when the issue of instalments arise...The without prejudice documentation is admissible as proof of settlement (but not liability etc).
If you have a concluded course of correspondence (if that is what you actually have) then tell the judge that. He or she should look at WP correspondence to see if that is in fact what you have. You need to do this first. The judge will hopefully look at it 'de bene esse' meaning that he will "forget" about it if it doesn't prove a concluded contract of settlement.
If you haven't settled the claim then you are back to square one. But the other side are being a trifle silly because even if you lose 100% the court may give you time to pay if it thinks it is necessary.
That in my eyes, is settlement reached and a contract formed.
If it makes any difference, I have another document from someone else within the same Solicitors practice, which is NOT marked WP which takes about the same final offer and how I should accept it, but does not detail the actual offer.
Thanks for everyone's help - appreciated
ADJimbo said:
I have an email trail of over 34 pages to show the court. In that we reach settlement, I agree to it and ask for the Tomlin Order. She then responds back with the order and that's when the issue of instalments arise...
That in my eyes, is settlement reached and a contract formed.
If it makes any difference, I have another document from someone else within the same Solicitors practice, which is NOT marked WP which takes about the same final offer and how I should accept it, but does not detail the actual offer.
Thanks for everyone's help - appreciated
you are on a hiding to nothingThat in my eyes, is settlement reached and a contract formed.
If it makes any difference, I have another document from someone else within the same Solicitors practice, which is NOT marked WP which takes about the same final offer and how I should accept it, but does not detail the actual offer.
Thanks for everyone's help - appreciated
settlement wasn't reached
ADJimbo said:
I have an email trail of over 34 pages to show the court. In that we reach settlement, I agree to it and ask for the Tomlin Order. She then responds back with the order and that's when the issue of instalments arise...
That in my eyes, is settlement reached and a contract formed.
How *exactly" was agreement reached? What were the exact words used in their offer, and how did you agree? This is quite important..That in my eyes, is settlement reached and a contract formed.
They're being a bit silly if the instalments are reasonable.
Their other option, if they go to court is that not only will they burn up £500 of legal costs, it's not unheard of for a debtor to plead poverty and get a court order for payment over month or years...
What are the odds of you winning the case in court?
You have a few options here:
1) You could argue (subject to the facts) that agreement was reached already with their solicitors.
2) You could put forward you own offer 'without prejudice save as to costs'. Dependent on your chances of winning, you could offer say £2000. If the case is decided for any less, you can show the Judge the offer, and the other party can be deemed as acting unreasonably for not accepting the offer.
This can be a powerful tool - I recently represented myself in a small claim where the other party was deemed to have acted unreasonably, for among other things, not accepting my offer to settle. I came prepared with a list of the hours I had spent in filing and preparing, and I was awarded costs at £18 per hour.
Jasandjules said:
ADJimbo said:
What would happen if I did refer to it anyway?
Impossible to say. The Judge may say "oops well I shall just ignore that". Or might get uppity. At this point you can't claim ignorance either.
ADJimbo said:
The Paralegal and I achieved settlement last week, based on paying 75% of the final bill over four installments (there idea). I am happy with that as it reflects the damage done to our vehicle and its a common-sense solution for both parties. She sent a 'Tomlin Order' through in which she had cunningly withheld any reference to the installments.
I queried this, The Paralegal said that her client had now changed their mind, and they want the settlement in a lump sum as opposed to installments.
Surely the lower settlement on condition of payment by instalments is the whole point of the Order.I queried this, The Paralegal said that her client had now changed their mind, and they want the settlement in a lump sum as opposed to installments.
http://www.lawgazette.co.uk/law/tomlin-a-guide-to-...
If so, then I'm thinking that the paralegal is either gaming or not up to speed on this.
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