(I had to read it 3 times to understand it!!!!)

Without Prejudice Save as to Costs.

Because the Courts cannot order disclosure of “Without Prejudice” negotiations (or documents) against the wishes of one of the parties of those negotiations, this obviously will mean that in some instances the Court, when it comes to the question of costs, cannot decide whether one side or the other was unreasonable in its actions.

Although, as noted in Unilever v Proctor & Gamble [2000] WLR 2436 at p2445, there are exceptions to the general rule of non-admissibility of “Without Prejudice” documents, there is no general exception of non-admissibility when it comes to the question of costs.

However, the application of the non-admissibility rule in respect of “Without Prejudice” documents can easily be avoided in the arbitration context by the simple expedient of using the Calderbank formula (Calderbank v Calderbank [1976] Fam 93) of negotiating “Without Prejudice Save as to Costs”.

In respect of litigation, where a Defendant believes that there is some merit in the Claimant’s claim, but not as much as the Claimant claims, then the Defendant can make a payment into Court of the amount he thinks the claim is genuinely worth, and must notify the Claimant of this action. If the Defendant sets the payment into court at the right level, this gives him some protection from liability for the Claimant’s legal costs assuming that the amount eventually awarded to the Claimant by the Court does not exceed the amount paid into Court.

It is not possible to pay money into Court in Arbitration, however in the Arbitration context, the Defendant (known in Arbitration as the Respondent) writes to the Claimant offering the amount he thinks is properly due, marking the letter “Without Prejudice Save as to Costs”. This letter is otherwise known as a “Calderbank” offer letter.

The Arbitrator will not be told about this offer until after he has made his decision on liability. If the amount he awards the Claimant is less than or equal to the amount included in the Respondent’s “Without Prejudice Save as to Costs” (Calderbank) offer, then the general rule is that the Claimant should pay the Respondent’s legal costs (and his own) from the date the offer is made. The logic behind this is that the Respondent has correctly assessed the justified level of the Claimant’s claim, and the Arbitration from that date on was a waste of time and money.

Basically it means that if you offer some money to the claimant or the court "without prejudice save as to costs", the claimant or court cannot disclose this to the judge and if the judge makes a judgement of a lesser amount the court awards ALL costs (of BOTH sides) against the claimant, because the claimant should have accepted the offer and has wasted court time.

Hi again everyone,

I hope you all had a nice Halloween weekend. I was in Stockholm visiting my parents (actually, I have 2 pictures of my very inventive (yeah, right!) costumes on Halloween on my photobucket page. So much thought went into 2 teeshirts, hehe:

http://s838.photobucket.com/albums/zz305/menvor

Anyway, it was really nice but of course I came home to find a letter from the dca again. Should I send them the letter about the deed of assigment and the cca request? This new letter said the following:

LETTER BEFORE ACTION

We note with regret that you have chosen not ot deal with this matter despite previous communication.

In an attempt to assist you in clearing your indebtness we would like to offer you the opportunity of making a final payment of £xxxx. It is therefore within your interest to contact this office by 06 Nov 2009, to arrange payment of this amount or to discuss an alternative method to clear your account with our client. Failure to contact this office by the stipulated date will mean that your account will be progressed through our pre-litigation system. Your account will then be passed to our solicitors for legal action on or about.

Please note, should you settle your outstanding debt by paying the amount offered which is less than uour full outstanding balance, your account will be closed once your payment has cleared. Your Credit file will show your balance as satisfied with a special flag to show you have made a partial settlement.

Should the litigation process be instigated and a judgment is granted we would seek an Order of the Court, directing you to pay monies outstanding. If we are successful and it is necessary to do so, because you do not pay the amount the court orders you to pay, we will seek to enforce such an Order with a Warrant of Execution, a Court Enforcement Officer (Bailiff) will be assigned to attend your address and carry out the Warrant.

The Bailiff will take an inventory and may levy goods. You will be informed if the Bailiff has impounded any of the goods and you will be asked to sign a Walking Possession Agreement, acknowledging that the impounded goods are in the possession of the Bailiff. If full payment or a satisfactory offer of a payment plan is not made, the Bailiff is authorised to remove the goods for sale to pay the debt and costs.

A Walking Possession Agreement means that the goods that have been seized now legally belong to the Bailiff and can be removed at any time. However, she/he will allow them to remain in your home and you can continue to use them providing you keep your side of the agreement, e.g. you make regular payments.

The fees charged by the Bailiffs will be added to the amount owed. Any additional costs for removing and selling goods will also be added to the amount you owe.

You should also remember that any goods you own may lose value over time. This may mean that if the Bailiff seizes goods to discharge the sum you owe, although the value of those goods will not exceed the amount you owe, it may cost you more to replace them.

All of this action is avoidable. It is therefore in your interest to prevent the above course of action by contacting this office immediately to discuss settlement or your proposed arrangement to settle this debt. Our experienced pre-litigation team are on hand to assist you, but this can only happen if you make contact before 06 Nov 2009 and failure to respond by the date outlined may result in legal action being instigated.

Thank you again for all your help!

mennie :)

Mennie

See what you meant by your costume. Would have thought abit too cold in Stockholm for tee-shirts.

The letter you have received is no different to the others. If they don't have your original form they probably won't take this any further forward.

I refer to previous posts. A without prejudice letter, making an offer of reduced affordable payments or a full and final settlement would be my suggestion.

You have a long time to go before the 6 year statute barred period kicks in and I think all the phone calls/letters will start to get you down. The debt will probably continue to be sold on, a bit like pass the parcel. Making the without prejudice offer may help to reduce the stress if they accepted it.

If you look at the link for insolvencyhelpline in my last post, they have some good 'without prejudice' letter templates. They also have a freephone helpline if you wanted their advice on this.

Huckster

Anyone know what a pre-litigation department is, never come across one myself.

At the end of the day, Huckster is right. They will never tire of chasing you for this. You can, of course tough it out and see what the above "department" choose to do.

If it were me, they would get a "see you in court, send full disclosure at the appropriate time prior to the hearing etc."letter. That's me and court is not for everyone. Court is also a funny place and you could lose even with the weight of evidence on your side. court and appeals are also expensive.

If you do decide to go the offer route then insult them first up (2 - 3% of balance) and look to negotiate. You can only negotiate one way so start low - they will get about 5% on the open market.

I've been to Stokholm several times and love it as a city although I agree with Huckster, you look a little under-dressed for the weather up there. That said, I often look at some of the kids (sorry, I am in my 70s) round here running around half dressed and wonder why they rushed out without their vest and winter coat. :-)

S

Thanks for the advice guys,

I'll send them off the letter and see what happens, and will consider the offer thing as well. What makes me reluctant to make an offer of reduced payments to clear it off is that I've read reports where they have started hassling people to pay more once they have been paying the agreed amount for a while. Maybe a 'without prejudice' letter for the 2 or 3% would be the way to go. Would you have any idea what percentage I would be likely to wind up paying in the end? Oh, and should I also state in the letter something like "I do not recognise this debt but will offer £x in order to put an end to this harrassment" or something?

As for Stockholm, the teeshirts were just my indoors wear, ha. My friends and I were at KGB Bar in Malmskillnadsgatan (don't know if you know it, but it's great). I obviously had my big coat, hat and scarf for outside, hehe. It's around zero degrees there these days, so need the warm stuff. I was over visiting my parents. Came to the UK ten years ago, for three years, and I'm still here.... but in a spot of trouble at the minute with this thing :-/

Wishing you a great day,

Mennie :)

If you go the offer route,be careful what you write and make sure that the offer is conditional upon the closure of the account, the balance to zero, all credit markers remove, relevant proofs etc before you hand over the cash.

If you forgetthe "without Prejudice" heading, you hand them evidence sufficient to pursue through court as it acknowledges the debt.

S

Mennie

This is the 'without prejudice' letter on the Insolvencyhelpline site. I reckon that if you offered 5% to start of with and raised this to 10%, they might except. Obviously it depends on what you can afford. You could mention that you are in the process of returning home to Sweden and this might make up their mind. Even if you had no such plans, this might make them worried that they will receive no money and therefore they may be more likely to accept.

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

FULL & FINAL SETTLEMENT LETTER FOR ANY DEBT

Your Name:
Your Address:
Date

Name of Creditor
Address of Creditor

WITHOUT PREJUDICE

Dear Sir/Madam

Re: Account No/Reference No:

I write with reference to the money which you are claiming on the above account.

I can confirm that I am unable to offer to pay the money which it is alleged I owe (Add details of your circumstances and financial situation). However, I can raise £ (put the amount which you can afford to pay) and I want to offer this as an ex-gratia payment in full and final settlement of the account. This offer is made on the clear understanding that, if accepted, neither you or any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that I will be released from any liability.

I also request that, if accepted, you will mark any entry on a credit reference agency file relating to the above account as "satisfied" in full.

Payment can be made within (put the number of days or weeks within which you will pay) of receiving your written agreement of this offer and method of payment.

I look forward to receiving your reply.

Yours faithfully

(Your signature)

REMEMBER
KEEP A COPY OF ALL LETTERS YOU SEND TO YOUR CREDITOR

huckster:

FULL & FINAL SETTLEMENT LETTER FOR ANY DEBT

WITHOUT PREJUDICE

...........which I owe in full .............................

REMEMBER KEEP A COPY OF ALL LETTERS YOU SEND TO YOUR CREDITOR

Whoooaaa!!! .... don't write admitting you owe the debt even in a 'without prejudice' letter. Better to put 'which you allege is owed' don't you think.

Stubie-One:

Anyone know what a pre-litigation department is, never come across one myself.

S

That's got to be Moorcroft's pre-school department.

Basa

Yes I did notice that. I just copied and pasted over from the Insolvencyhelpline.

I agree it would be better to change the wording as you have indicated above. I have amended the letter in previous post, just in case.

Huckster