part 36 offer from solicitor received
Discussion
Following on from my other post (damage caused to my property by the neighbours builders).
The neighbours solicitor has sent me a letter telling me they make an offer under "part 35 offer" for less than half the amount I am claiming for. Also they advise they want me to select 1 of the 3 surveyors they nominate for a joint application to inspect my property and would look to dismiss my own independent RICS approved surveyors report.
I have passed it to my solicitors firm and the senior paralegal is yet to respond.
Do I have to respond to the offer within 21 days, if I ignore it what happens, shall I stick to selecting my own RICS approved surveyor to supply a RICS building survey?.
The neighbours solicitor has sent me a letter telling me they make an offer under "part 35 offer" for less than half the amount I am claiming for. Also they advise they want me to select 1 of the 3 surveyors they nominate for a joint application to inspect my property and would look to dismiss my own independent RICS approved surveyors report.
I have passed it to my solicitors firm and the senior paralegal is yet to respond.
Do I have to respond to the offer within 21 days, if I ignore it what happens, shall I stick to selecting my own RICS approved surveyor to supply a RICS building survey?.
A part 36 offer is important. Make sure your solicitor advises you.
Essentially if it goes to court and the award is at or below the level of the Part 36 offer you would end up paying the opposing sides costs.
Usual legal response is to serve a counter Part 36 offer to concentrate minds.
Essentially if it goes to court and the award is at or below the level of the Part 36 offer you would end up paying the opposing sides costs.
Usual legal response is to serve a counter Part 36 offer to concentrate minds.
What sort of counter offer would one make in this situation.
Current position is the building owner is disputing the cost of the works required, I have explained I have had several builders out and they have quoted a similar amount to each other.
If the RICS approved surveyor attends and disagrees with my quote and it is lower than the neighbours offer would I then become responsible for the neighbours legal costs or could I accept her offer?
Current position is the building owner is disputing the cost of the works required, I have explained I have had several builders out and they have quoted a similar amount to each other.
If the RICS approved surveyor attends and disagrees with my quote and it is lower than the neighbours offer would I then become responsible for the neighbours legal costs or could I accept her offer?
s2bounce said:
What sort of counter offer would one make in this situation.
Current position is the building owner is disputing the cost of the works required, I have explained I have had several builders out and they have quoted a similar amount to each other.
If the RICS approved surveyor attends and disagrees with my quote and it is lower than the neighbours offer would I then become responsible for the neighbours legal costs or could I accept her offer?
I think you only become liable for the defendants costs if the award at trial is less than the part 36 offer. You are inevitably going to be low-balled on the first offer. You can make a part 36 counter offer. I'd have thought an alternative surveyor opinion is reasonable. Solicitor time.Current position is the building owner is disputing the cost of the works required, I have explained I have had several builders out and they have quoted a similar amount to each other.
If the RICS approved surveyor attends and disagrees with my quote and it is lower than the neighbours offer would I then become responsible for the neighbours legal costs or could I accept her offer?
You should be asking your solicitor all of these questions and the taking their advice. You keep referencing a paralegal vs their solicitor. You’ll probably find that their solicitor is similar to your set up, with paralegals, junior staff etc doing all the work.
However, to answer your questions simply. The 21 day deadline is irrelevant, you can respond when you want or not at all. There is no value to them in withdrawing the offer
There is no value in countering with your own Part 36, as you’ve already effectively stated what you want from them. As has been said, if you reject the offer the the award has to be below this figure for you to be liable for costs from the date of the Part 36. There is no value in them lowballing you on this. Their Part 36 offer needs to be realistic, otherwise it will always be exceeded at trial, making the offer worthless
You can choose any surveyor you want at all. However, it would be good form to demonstrate a willingness to negotiate / compromise on some parts. Maybe provide a list of 10 and agree one rather than be limited to their choice of three.
Just to reiterate. Take your solicitor’s advice over what’s said on here.
However, to answer your questions simply. The 21 day deadline is irrelevant, you can respond when you want or not at all. There is no value to them in withdrawing the offer
There is no value in countering with your own Part 36, as you’ve already effectively stated what you want from them. As has been said, if you reject the offer the the award has to be below this figure for you to be liable for costs from the date of the Part 36. There is no value in them lowballing you on this. Their Part 36 offer needs to be realistic, otherwise it will always be exceeded at trial, making the offer worthless
You can choose any surveyor you want at all. However, it would be good form to demonstrate a willingness to negotiate / compromise on some parts. Maybe provide a list of 10 and agree one rather than be limited to their choice of three.
Just to reiterate. Take your solicitor’s advice over what’s said on here.
Integroo said:
A Part 36 offer has important costs consequences - speak to your solicitor.
Briefly, if you accept the Part 36 offer within the relevant period (normally twenty one days) you are liable to pay his costs on the standard basis (ie as assessed by the court to be reasonable and proportionate). If you accept it after the relevant period you are acceptable for his costs on the indemnity basis (Ie absolutely everything he has incurred).
If you do not accept It, and the case proceeds to trial, it effectively moves the goalposts for a 'win' from a costs perspective. Normally, the winner gets costs on the standard basis. However, if his offer is 10k and you only achieve 8k in damages at trial, you have 'lost' despite winning damages and are therefore responsible for his costs. There are various permutations on winning/losing and the basis costs are to be assessed and legal advice is essential.
Accepting a Part 36 offer does not make the claimant liable for the defendant’s costs, nor are they liable on the indemnity basis if they accept after the relevant period. Accepting after the relevant period will make the claimant responsible for the defendant’s costs from the end of the relevant period to the acceptance.Briefly, if you accept the Part 36 offer within the relevant period (normally twenty one days) you are liable to pay his costs on the standard basis (ie as assessed by the court to be reasonable and proportionate). If you accept it after the relevant period you are acceptable for his costs on the indemnity basis (Ie absolutely everything he has incurred).
If you do not accept It, and the case proceeds to trial, it effectively moves the goalposts for a 'win' from a costs perspective. Normally, the winner gets costs on the standard basis. However, if his offer is 10k and you only achieve 8k in damages at trial, you have 'lost' despite winning damages and are therefore responsible for his costs. There are various permutations on winning/losing and the basis costs are to be assessed and legal advice is essential.
Edited by Integroo on Thursday 26th April 16:56
OP, the course of action is to speak to your solicitor. The internet can tell you the theory, but they know your case and your circumstances, so only they can advise on whether to accept, reject or counter.
Edited by Draculaw on Thursday 26th April 20:25
OP, as has been mentioned above, you need to take legal advice where those advising you have the relevant professional indemnity insurance to do so.
I suspect the combination of the posts above may leave you more confused than you were before posting, but the important message the posters have reiterated is to do as above.
A Part 36 offer can be important, if it is well pitched. Your solicitor should advise you on the risks of the offer, including in reference to any expert evidence relied on by either side.
The cost consequences of a Part 36 offer take effect from the last day when the offer could have been accepted. As Gavia mentions, from a tactical point of view, there may be little point withdrawing a well pitched Part 36 offer, as the benefits to the person making the offer will not remain. Offers can get withdrawn after the "relevant period", which may happen, for example, if new evidence comes to light that makes the offeror deem the offer to be too high. But again you need to speak to your solicitor regarding the merits of the offer and where to go from here.
There's reference to "indemnity costs" above. This does not mean that all costs incurred by a party are then payable by the other party, but any doubt would be resolved in favour of the receiving party (for example, obvious disproportionate costs would not be). Again, your solicitor should advise you as to the full position and when indemnity costs might become relevant, if at all.
If you Google "Part 36 Civil Procedure Rules" you can see the rules for yourself and there will no doubt be many articles online explaining the workings of the same. But just to drum home the message, take advice specific to your circumstances from your solicitor.
Good luck.
I suspect the combination of the posts above may leave you more confused than you were before posting, but the important message the posters have reiterated is to do as above.
A Part 36 offer can be important, if it is well pitched. Your solicitor should advise you on the risks of the offer, including in reference to any expert evidence relied on by either side.
The cost consequences of a Part 36 offer take effect from the last day when the offer could have been accepted. As Gavia mentions, from a tactical point of view, there may be little point withdrawing a well pitched Part 36 offer, as the benefits to the person making the offer will not remain. Offers can get withdrawn after the "relevant period", which may happen, for example, if new evidence comes to light that makes the offeror deem the offer to be too high. But again you need to speak to your solicitor regarding the merits of the offer and where to go from here.
There's reference to "indemnity costs" above. This does not mean that all costs incurred by a party are then payable by the other party, but any doubt would be resolved in favour of the receiving party (for example, obvious disproportionate costs would not be). Again, your solicitor should advise you as to the full position and when indemnity costs might become relevant, if at all.
If you Google "Part 36 Civil Procedure Rules" you can see the rules for yourself and there will no doubt be many articles online explaining the workings of the same. But just to drum home the message, take advice specific to your circumstances from your solicitor.
Good luck.
Draculaw said:
Accepting a Part 36 offer does not make the claimant liable for the defendant’s costs, nor are they liable on the indemnity basis if they accept after the relevant period. Accepting after the relevant period will make the claimant responsible for the defendant’s costs from the end of the relevant period to the acceptance.
OP, the course of action is to speak to your solicitor. The internet can tell you the theory, but they know your case and your circumstances, so only they can advise on whether to accept, reject or counter.
Ah, got muddled as I thought OP was defendant. Deleted to avoid confusion with other good advice given.OP, the course of action is to speak to your solicitor. The internet can tell you the theory, but they know your case and your circumstances, so only they can advise on whether to accept, reject or counter.
Edited by Draculaw on Thursday 26th April 20:25
Best advice is speak to your solicitor.
Edit: defendant...dont post on spl after five beers...
Edited by Integroo on Friday 27th April 10:54
s2bounce said:
Thank you all for your reply, I will be speaking to my solicitor but I just wanted to get a better understanding of what happens etc, so I know the right questions to ask my solicitor and know what to expect.
You shouldn’t need to ask your solicitor anything, they should be explaining everything to you to start with. After that you agree an approach between you. Your solicitor is on your side. s2bounce said:
Thank you all for your reply, I will be speaking to my solicitor but I just wanted to get a better understanding of what happens etc, so I know the right questions to ask my solicitor and know what to expect.
just for your interest, you may want to read this as wellhttps://www.justice.gov.uk/courts/procedure-rules/...
afternoon all,
My legal expenses cover are declining to help me with the part 36 offer at the moment as they want a surveyors report detailing what damage was done prior to notices being served. I have already supplied them with a letter to show the neighbour accepts liability for the damage her builders caused and the schedule of condition report supplied by the party wall surveyors detailing damage to my property prior to the notices being served.
The part 36 offer is expiring next week and I cannot get a surveyor out in time to provide a report, but my party wall surveyor has advised I make a counter offer for only damage caused prior to notices being served and any damage after notices were served are dealt by the party wall surveyors under the party wall act.
Money is tight as I have just purchased another property and all my funds have gone on to that property so I cannot afford to get a solicitor involved.
How do I make a counter offer (any forms to fill in? do I simply write a letter and post it to the neighbours solicitors?)
Anyone help me with the wording so I don't put myself in it.
My legal expenses cover are declining to help me with the part 36 offer at the moment as they want a surveyors report detailing what damage was done prior to notices being served. I have already supplied them with a letter to show the neighbour accepts liability for the damage her builders caused and the schedule of condition report supplied by the party wall surveyors detailing damage to my property prior to the notices being served.
The part 36 offer is expiring next week and I cannot get a surveyor out in time to provide a report, but my party wall surveyor has advised I make a counter offer for only damage caused prior to notices being served and any damage after notices were served are dealt by the party wall surveyors under the party wall act.
Money is tight as I have just purchased another property and all my funds have gone on to that property so I cannot afford to get a solicitor involved.
How do I make a counter offer (any forms to fill in? do I simply write a letter and post it to the neighbours solicitors?)
Anyone help me with the wording so I don't put myself in it.
s2bounce said:
afternoon all,
My legal expenses cover are declining to help me with the part 36 offer at the moment as they want a surveyors report detailing what damage was done prior to notices being served. I have already supplied them with a letter to show the neighbour accepts liability for the damage her builders caused and the schedule of condition report supplied by the party wall surveyors detailing damage to my property prior to the notices being served.
The part 36 offer is expiring next week and I cannot get a surveyor out in time to provide a report, but my party wall surveyor has advised I make a counter offer for only damage caused prior to notices being served and any damage after notices were served are dealt by the party wall surveyors under the party wall act.
Money is tight as I have just purchased another property and all my funds have gone on to that property so I cannot afford to get a solicitor involved.
How do I make a counter offer (any forms to fill in? do I simply write a letter and post it to the neighbours solicitors?)
Anyone help me with the wording so I don't put myself in it.
Please don't take legal advice from a Party Wall Surveyor - they don't know anything about offers and/or the law.My legal expenses cover are declining to help me with the part 36 offer at the moment as they want a surveyors report detailing what damage was done prior to notices being served. I have already supplied them with a letter to show the neighbour accepts liability for the damage her builders caused and the schedule of condition report supplied by the party wall surveyors detailing damage to my property prior to the notices being served.
The part 36 offer is expiring next week and I cannot get a surveyor out in time to provide a report, but my party wall surveyor has advised I make a counter offer for only damage caused prior to notices being served and any damage after notices were served are dealt by the party wall surveyors under the party wall act.
Money is tight as I have just purchased another property and all my funds have gone on to that property so I cannot afford to get a solicitor involved.
How do I make a counter offer (any forms to fill in? do I simply write a letter and post it to the neighbours solicitors?)
Anyone help me with the wording so I don't put myself in it.
Also, are you planning to make a separate claim against the other Party Wall Surveyor? You want to be very very careful about making any offers - as if you make an offer in "full and final settlement" of your claim, you may not be able to then go back and claim again against your neighbour and/or the other surveyor.
What percentage of the damage was done before the notices were served?
And why does your surveyor only think you should be compensated for the damage up until that point?
A lot of damage was done prior to the notices being served, which the neighbour accepts but disagrees on the cost to reinstate the property as it was before, she cannot prove what the condition was like prior to her starting the works as she did not serve notices or carry out a schedule of condition.
My surveyor has advised that as they have made the part 36 offer for full and final settlement of this claim for damage to my property I make a counter offer to state I want to settle only for damage caused prior to party wall notices being served for xxx amount and any damage after party wall notices were served would be dealt with by the 2 appointed party wall surveyors.
My surveyor is a magistrate and has a lot of knowledge and understanding of the law (so he states) but has offered friendly advice.
My surveyor has advised that as they have made the part 36 offer for full and final settlement of this claim for damage to my property I make a counter offer to state I want to settle only for damage caused prior to party wall notices being served for xxx amount and any damage after party wall notices were served would be dealt with by the 2 appointed party wall surveyors.
My surveyor is a magistrate and has a lot of knowledge and understanding of the law (so he states) but has offered friendly advice.
s2bounce said:
My surveyor is a magistrate and has a lot of knowledge and understanding of the law (so he states) but has offered friendly advice.
A couple of points. Magistrates deal with criminal law, not civil law. And they're usually lay (i.e. legally unqualified) magistrates who are advised by the (qualified) court clerk on how to apply the law.
He may well be good at what he does. But he won't be insured to offer advice outside his area of expertise and you rely on it at your peril. (He may be right, for all I know - I simply make the point by way of general advice)
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