Full and Final Letter Recieved - Appears Useless

[sutherland]

I've received an acceptance of F&F worded thus:

 

'Our clients are prepared, without prejudice, to accept £XXXX in full and final settlement of the debt, provided that payment is made by...'

 

I assume the 'without prejudice' they have slipped into the sentence renders this useless. Am I correct?

[PGH7447]

I believe you are Correct, it means they will then sell the remainder on, photocopy the letter and send it back with that phrase deleted and say you would be prepared to accept the amended letter only

[Monty2007]

I've received an acceptance of F&F worded thus:

 

'Our clients are prepared, without prejudice, to accept £XXXX in full and final settlement of the debt, provided that payment is made by...'

 

I assume the 'without prejudice' they have slipped into the sentence renders this useless. Am I correct?

 

This is a standard clause that goes into pre-court doucmentation and settlements.

 

"The words ‘without prejudice’ when added to letters, only mean that in the event of the negotiations carried on by those letters not resulting in any agreement, nothing in them is to be taken as an admission. Where letters written ‘without prejudice’ contained an undertaking on certain terms which were agreed to by the other side, and afterwards the parties giving the undertaking wished to introduce a fresh condition, the original undertaking was enforced."

 

If you are wanting to accept their offer then ensure that the signed acceptance is sent off by guarenteed next day delivery (don't just use recorded delivery), its more expensive but you get insurance and it will arrive next day provided you get to the PO early.

[sutherland]

Just called them. They claim that it says this in case I do not pay and gives them the right still to purse. I said they'd still have the right to pursue in that case even if it didn't say without prejudice. They assured me that when I paid they'd send me a letter confirming F&F settlement and that balances have been marked zero.

 

I don't know whether to pay them on trust (it's a "Division of Barclays PLC" that I'm dealing with) or to demand the phrase 'without prejudice' is deleted. They insisted they cannot do that. I've been wrangling with them for 6 years so I guess another few days/weeks/months/years will make no difference.

[sutherland]

Monty, does that come from this site: Legal Definition of Without Prejudice

 

If so, isn't that an American position?

[PGH7447]

If its Mercers then definately get the "without Prejudice" removed

[sutherland]

It's not Mercers, but Central Debt Collection Services. I think Mercers got fed up with me sometime in July.

 

Perhaps I should add that their letter begins 'We write with reference to your recent communication' which was an unprejudiced letter confirming our verbal agreement on the F&F.

Edited November 21, 2008 by sutherland

[Josie8]

It's not Mercers, but Central Debt Collection Services. I think Mercers got fed up with me sometime in July.

 

Perhaps I should add that their letter begins 'We write with reference to your recent communication' which was an unprejudiced letter confirming our verbal agreement on the F&F.

 

 

Do not pay money on basis of without prejudice offer. Any payment you do make make it through a third party.

[bazaar]

Hi Sutherland

DO NOT PAY THEM.

Yes the 'without prejudice' is an Americanism. It means that the letter cannot be used at court. So, let's say you pay up the amount they suggest on their letter. That will only bring your account up to date so, so to speak. They will definitely come after you for anything else they claim is outstanding.

Then you aint got a leg to stand on.

So the letter should be worded 'WITH Prejudice' to make it binding if they chase you afterwards.

Barclays and all their merry men, will tell you anything to get you to pay.

They once offered to pay me 150 for making a payment ( oh OK then).

Strange but true.

dont trust em

[sutherland]

What about the following point in an article taken from Privileged, Without Prejudice, and Without Prejudice Save As to Costs documents. - Alway Associates? Once the settlement had been made would the correspondence not then become admissible? Perhaps that is Barclays point, if I don't pay up and they then decide to sue, they would not want this letter to compromise their case.

 

“Without Prejudice” correspondence remains “Privileged” even after a compromise has been reached and is generally inadmissible in any subsequent litigation on the same subject matter whether between the same or different parties. However, where the negotiations are successful and the “Without Prejudice” correspondence constitutes a binding contract the correspondence may be produced to prove that such a contract has been entered into (if, say, one party does not comply with the terms of the settlement, and the other wishes to enforce it). (Ref: Rush & Tompkins v Greater London Council (Court of Appeal) 21 December 1987).

Thanks for your comment Josie. I would intend to use a third party - probably partner or limited company. From this thread I think the my LTD would be a sensible idea: http://www.consumeractiongroup.co.uk/forum/legalities/156742-f-f-settlements-made.html

[bazaar]

Just a quick point here.

Why are they offering you a full and final offer??

Do they not have a valid agreement perhaps?

have you asked for sight of the agreement?

[sutherland]

Bazaar,

 

They're confirming acceptance of my offer.

 

They do have a valid agreement - at least they sent me a copy. Whether or not they have the original would of course be another matter.

[sutherland]

Well, I'm finding it impossible to get them to remove the 'without prejudice' phrase (although the letter is not headed so). They assure me on the phone that it will not be pursued if I pay. If a third party pays and accompanies it with an approriate letter referring to this letter could we then use their letter in court or would I be scuppered?

 

Any comments on the article above that I referred to in that connection (Privileged, Without Prejudice, and Without Prejudice Save As to Costs documents. - Alway Associates)? I've only got a few days to pay now.

[bazaar]

Theyll assure you the world over the phone, you need to get in writing they accept the FF and will not pass on details or pursue for costs etc.

you may need a mods help here so keep an eye out

[sutherland]

Is their any reason why I (third party in fact) cannot write saying, 'Following your letter of 10 December in which you agreed to accept £XXXX in full and final settlement of the above account, we enclose payment of £XXXX on condition that neither you nor any other party will continue to pursue this account in any way and that all correspondence leading up to this settlement will no longer be subject to privilege.'

 

According to the other thread I referenced above payment from a third effectively seals things anyway.

[DocH]

Is their any reason why I (third party in fact) cannot write saying, 'Following your letter of 10 December in which you agreed to accept £XXXX in full and final settlement of the above account, we enclose payment of £XXXX on condition that neither you nor any other party will continue to pursue this account in any way and that all correspondence leading up to this settlement will no longer be subject to privilege.'

 

According to the other thread I referenced above payment from a third effectively seals things anyway.

 

IMHO do not enclose any payment until you have a written undertaking of the conditions you want. You may also want to consider an undertaking from then that they mark the account as settled in full and that the account balance is set to zero. Belt and bracers job.

 

I know you've only got a few days left in which to complete the negotiation - can you fax a copy of the letter to them and follow up with a hard copy by special, signed delivery?

[sutherland]

They're proving impossible to deal with. One guy says we'll send another letter, the next says no way. Would their be any point in recording a call in which they say it will not be pursued in any way?

 

Maybe I should make some kind of complaint on the basis that it appears intended to breach OFT guidleine 2.2b: 'leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledge.'

 

What other legitimate intention can the 'without prejudice' phrase have in the context of a letter purporting to accept a certain amount as F&F?

[DocH]

They're proving impossible to deal with. One guy says we'll send another letter, the next says no way. Would their be any point in recording a call in which they say it will not be pursued in any way?

 

Why not. At the very least you'd have some evidence of how slippery they have been. You cannot use the recording directly as evidence unless you've informed that other party that you are doing so. However, there is no obligation to tell them and in that case you can make a transcript of it to use as evidence and have a copy of the recording with you should the evidence of the transcript be queried.

 

Maybe I should make some kind of complaint on the basis that it appears intended to breach OFT guidleine 2.2b: 'leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledge.'

Always worth making a complaint if you feel you've not been treated fairly. Although the OFT will not act on individual complaint. They apparently need several complaints against the same company before they will act.

 

What other legitimate intention can the 'without prejudice' phrase have in the context of a letter purporting to accept a certain amount as F&F?

As far as I am aware, and I am no legal expert, written acceptance of a F&F becomes a contract binding on both parties. Prior to that in the eyes of the court it does not exist. There is another case going on at the moment being discussed within the Legal Issues forum, and I'm sorry I can't for the life of me remember the users name, but it might be worth doing a search for.

[sutherland]

Thanks DocH. If understand the following statement from the Always Associates website correctly, then the letter could be produced in court once the settlement has been finalised:

 

"However, where the negotiations are successful and the “Without Prejudice” correspondence constitutes a binding contract the correspondence may be produced to prove that such a contract has been entered into (if, say, one party does not comply with the terms of the settlement, and the other wishes to enforce it). (Ref: Rush & Tompkins v Greater London Council (Court of Appeal) 21 December 1987."

 

If I settle according to the terms of their offer surely I have entered into a binding contract? This seems clear from the Court of Appeal decision mentioned in the Rush & Tompkins case: "The Court of Appeal reversed his decision and ordered discovery of the without prejudice correspondence passing between [/url]Rush and Tompkins and the G.L.C. holding that the protection given by the without prejudice rule ceased once a settlement had been reached." (Rush & Tompkins Ltd v Greater London Council [1988] UKHL 7 (03 November 1988)). Yet the House of Lords "restore the decision of the learned official referee." But if I understand this correctly, that is to do with the disclosure of privileged documents to third parties in a multi-party disupute.

 

 

Any opinons? This is mighty perplexing at times.

[DocH]

Thanks DocH. If understand the following statement from the Always Associates website correctly, then the letter could be produced in court once the settlement has been finalised:

Any opinons? This is mighty perplexing at times.

 

Yes, that's my understanding of it as well.

 

You may have already read this, but it does contain useful information:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159980-36-offers.html

[Vital Spark]

Hi Sutherland

DO NOT PAY THEM.

Yes the 'without prejudice' is an Americanism...........

 

If you read further down that page, linked in an earlier post, there is:

 

"In Halsbury's Laws of England:

"Letters written and oral communications made during a dispute between parties which are written or made for the purpose of settling the dispute, and which are expressed or otherwise proved to have been made without prejudice cannot generally be admitted in evidence. The rule does not apply to communications which have a purpose other than settlement of the dispute." "

 

Now, is this England as many Americans refer to Britain or is it England as in England massively different in Law from Scotland in many cases?

 

Again further down it explains:

 

"

The privilege of adding without prejudice to lawyer letters has been thoroughly over-used.

Without prejudice has become a customary addition to all attorney letters, almost as if it were a professional trade-mark, and designed more to intimidate than to settle or negotiate.

In some cases, attorneys stick a without prejudice on every letter they write, more times than not simply to add sting, as a badge of temerity or brashness, so much so that you will routinely see it stamped or printed on letters clearly intended to be with prejudice, such as a letter which purports to confirm a settlement.

If a letter is written without prejudice, the rule of thumb is that it is

privileged

and cannot be used in Court as

evidence

. However, in some jurisdictions, there has been so much abuse of this caution that no such privilege is extended to any letter marked without prejudice unless in fact the letter actually advances a settlement or otherwise is part of some such negotiation towards settling."

 

I wonder if it might be prudent to ask the Govan law people for advice pertaining to Scotland.

[Vital Spark]

They're proving impossible to deal with. One guy says we'll send another letter, the next says no way. Would their be any point in recording a call in which they say it will not be pursued in any way?

 

Maybe I should make some kind of complaint on the basis that it appears intended to breach OFT guidleine 2.2b: 'leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledge.'

 

What other legitimate intention can the 'without prejudice' phrase have in the context of a letter purporting to accept a certain amount as F&F?

 

I think, but only THINK, that a recorded call can be used in evidence only if the second party has been informed, at the beginning of the call, that the call is being recorded to be used as evidence. If then, the second party continues with the call, it is taken that he/she has agreed to the call being used as evidence.

 

I'm sure someone else can confirm or correct this. Again, perhaps the Govan Law Centre might help.

[sutherland]

Vital Spark, thanks. I think the article I refer to on the Brodies website in another thread is more useful (http://www.consumeractiongroup.co.uk/forum/scotland/176388-without-prejudice-scotland.html).

[sutherland]

Well, surprise, surprise, they are trying to pursue me for the balance. My instinct that their use of 'without prejudice' was intended to allow them to do this was correct. Nonetheless, I believe that they are mistaken if they think 'without prejudice' means their letter cannot be used in court now that the settlement has been reached.

 

And of course I have recordings of their delightful operatives assuring me that I would not be pursued in any way and that my credit file would be marked satisfied.

 

Barclays also added to their crimes by denying that they had any information (in response to my SAR) dating beyond December--now a rather obvious lie.