Threatened by solicitors "Without Prejudice Save as to Costs"

[phleck]

I'm currently taking a company, Medic Care, to court for £680 inc charge to file claim.

 

I am claiming in a small claims court via the moneyclaims online service.

 

There's no need to go into details about Medic Care or the case, but I'd like to think I will win.

 

Firstly, and obviously, I do not have legal representation as that's the idea of going to a small claims court. I've been told that even if you do use legal representation and win your side of the case, you can't (or it's VERY unlikely you will be able to) claim back your legal expenses from the losing side.

 

That all seemed OK until I received the letter (which I have pasted at the end of this post).

 

The letter references the Calderbank vs Calderbank case whereby an offer was made by the defendant without prejudice save as to costs and if the offer were rejected then legal expenses post dating that of the letter would become payable by the claimant if the claimant were to lose the case.

 

However in the letter (at the end of the post), I can't actually see an offer. Just a threat, a threat that doesn't even make proper sense (convert it to basic english and explain it out loud to someone, you'll see what I mean).

 

What does everyone think?

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

Dear Sirs,

 

Re: Our Client: Medic Care Ltd

 

As you know, we act for Medic Care Ltd and are instructed to continue with the defence of the claim.

 

You should be under no illusion that our client feels very strongly about defending this claim and firmly believes in the merits of its defence.

 

However, in the interests of compromise and to avoid use of valuable court time, we are instructed to make a proposal.

 

If you withdraw the claim within the next fourteen days then our client will not pursue an order for costs against you should it be successful in defending the claim.

 

We do, however, put you on notice that should you persist with this claim and should our client’s defence succeed then it will be our intention to make an application for costs against you.

 

Although this proposal is made on a without prejudice basis, it is made in accordance with the principles of Calderbank v Calderbank. As such, we reserve the right to refer the contents of this letter to the court on any issue as to payment of costs.

 

Yours faithfully,

 

 

 

BYRNE FRODSHAM & CO.

[My Real Name]

There does seem to be a complete absence of an offer of settlement.

 

Perhaps you could send your own Calderbank letter, offering to settle, save for costs.

 

You should be under no illusion that our client feels very strongly about defending this claim and firmly believes in the merits of its defence.

Is it just me, or does this read that their client does not feel strongly at all about defending the claim?

[hightail]

Is it just me, or does this read that their client does not feel strongly at all about defending the claim?

 

I think they feel very strongly, not so sure they feel confident. If you 'firmly believe in the merits of your defence' there's not much need to say so at this stage. By the time it's got this far they would presumably have told the OP why they don't think they're liable in previous correspondence.

[Bookworm]

Good one.

 

Plain English: "Withdraw your claim or else..." "or else what?" "Errrr, we'll ask the judge to hit you with costs if you lose".

 

I would reply on the lines of:

 

"Dear Sir,

 

thank you for you letter of xx, the contents of which are noted. I refer you to the rules of Small Claims under which costs of the winning party are not recoverable unless the losing party had acted unreasonably or vexatiously. I firmly believe in the merits of my action or I wouldn't have brought it to court in the first place and so I would as a matter of fact vigorously fight such an application as you propose, and if you do decide to bring this letter to the attention of the court, I will only be too pleased to point out to the judge that since your letter is merely a thinly veiled attempt to intimidate me into abandoning my case, the "without prejudice save as to costs" rule doesn't apply, since it is quite obvious that your proposition is not a genuine attempt at reaching a settlement. I am pretty sure the courts would frown upons such a behaviour, frankly.

 

Should you wish to make me a GENUINE proposal for settlement, I expect your further correspondence. Please be aware that any settlement prior to the court hearing will not be subject to any confidentiality agreement, unless of course you are prepared to make me a substantial offer to secure my silence in the matter.

 

Yours etc..."

 

...or words to that effect.

[raydetinu]

Booky, just the job. Solicitors intimidation or what.

[hightail]

Of course it's intended to intimidate. Makes you wonder why they feel they need to doesn't it?

 

Booky, your letter is great but wouldn't you love to reply with

'thank you for your letter of.......... it was really scary and I'm taking it very seriously.

[phleck]

Thank you everyone for your input!

 

Bookworm, thank you for taking the time to construct that letter for me - it's much appreciated.

 

I thought this much. I have already replied but wish I had saved it to incorporate some of bookworms input!

 

In fact, I think I shall get our other director to reply to their letter when it actaully arrived as I only replied to the email containing the letter.

 

From collaboration with other people having similar problems to me in my area, we have also discovered that the client has 7 previous judgements against them. We have also confirmed that the solicitors should not address me how they did - it's obvious, I know, but there's actually a code of conduct against it:

 

Solicitors Regulation Authority - Code of Conduct: Rule 10

 

I am, of course, referring to how they are trying to threaten and confuse me with legal jargon as I have no representation - quoted cases that I blatantly will have never have heard of.

 

Thanks again everyone, I really do appreciate it and if I find anything useful then I will be sure to post any updates here so as to help anyone else that may be in the same situation.

[rickyd]

I

 

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

Dear Sirs,

 

Re: Our Client: Medic Care Ltd

 

However, in the interests of compromise and to avoid use of valuable court time, we are instructed to make a proposal.

 

If you withdraw the claim within the next fourteen days then our client will not pursue an order for costs against you should it be successful in defending the claim.

 

Yours faithfully,

 

BYRNE FRODSHAM & CO.

 

Eh? How confused are they? "if you withdraw the claim........should it be successful in defending the claim"

 

How can they be successful in defending a withdrawn claim? I don't think they're firing on all cylinders here.

 

I'm no legal expert but my command of English is pretty good and this is a total contradiction. If it's meant to intimidate they could have least have read through it before sending it to you. As one wonderful line in the Michael Caine film "Pulp" so eloquently put it, "I'm not a physical man, but if I was to engage in a fight with you the weapon I should choose would be grammar".

 

I think these guys are letting excitement get the better of them and as solicitors they show a remarkably feeble grasp of the principle tool of their trade - English! In light of this, the letter is as intimidating as a chocolate teddy bear.

 

Bare your teeth back at them!

Edited October 30, 2009 by rickyd

[Bookworm]

As one wonderful line in the Michael Caine film "Pulp" so eloquently put it, "I'm not a physical man, but if I was to engage in a fight with you the weapon I should choose would be grammar".

Surely, that should be "if I were to engage in a fight..."?

[phleck]

Bare your teeth back at them!

 

Thanks for your reply!

My lips are parted, my mouth is wide and my teeth are fully baring!

 

Surely, that should be "if I were to engage in a fight..."?

 

 

I guess you're not called Bookworm for nothing!

[spitfire650]

Its complete Botox, as other posters have noted intended to intimidate you.

 

"Without Prejudice Save as to Costs" letters are only meaningful if they contain a settlement offer, since the theory behind this is if you don't beat that offer at the hearing they can then apply for costs from the point of issuing the offer. As it is in the small claims court they don't get costs anyway and know it.

 

I would just write back saying that having already paid the issue fee you would prefer to have the matter determined by the court rather than the defendant's legal representatives, and whilst you appreciate their offer to short circuit the small claims process will wait for a hearing date.

 

Good luck!

[gezwee]

Its complete Botox, as other posters have noted intended to intimidate you.

 

"Without Prejudice Save as to Costs" letters are only meaningful if they contain a settlement offer, since the theory behind this is if you don't beat that offer at the hearing they can then apply for costs from the point of issuing the offer. As it is in the small claims court they don't get costs anyway and know it.

 

I would just write back saying that having already paid the issue fee you would prefer to have the matter determined by the court rather than the defendant's legal representatives, and whilst you appreciate their offer to short circuit the small claims process will wait for a hearing date.

 

Good luck!

 

Spot on Spitfire, with no offer of settlement they do not enjoy any benefit of non disclosure prior to costs order.

 

I would be inclined to send copy on to court manager for filing with claim.

 

Gez

[rickyd]

Surely, that should be "if I were to engage in a fight..."?

 

quite right!

 

It had been a long day.....

[maddiemay]

Could someone clarify Without prejudice save as to costs, I have recently sent a settlement offer to a non paying customer's solicitors,its a long story covered in another thread, I didn't put that on the letter, my worry is, if in the likely event that they dont pay, I will have to take them to court and pay a solicitor, how will ommiting the save as to cost affect me. Could I send another amended with that on it. Please advise asap, their solicitors are picking me up on every little mistake I make.

[gezwee]

Could someone clarify Without prejudice save as to costs, I have recently sent a settlement offer to a non paying customer's solicitors,its a long story covered in another thread, I didn't put that on the letter, my worry is, if in the likely event that they dont pay, I will have to take them to court and pay a solicitor, how will ommiting the save as to cost affect me. Could I send another amended with that on it. Please advise asap, their solicitors are picking me up on every little mistake I make.

 

 

Hi MM,

 

Its all a question of non disclosure..... was there anything within your settlement offer that could come back to bite you at a later date.

 

eg; you press your client for payment of outstanding sum - say £1000.00, offering a 50% discount if they settle.

 

Client offers no response, you press ahead with claim. You win in court, DJ orders full amount + costs. Respondents sols produce your previous letter offering settlement at 50%.

 

DJ reduces settlement order to same.

 

You have to think carefully about the use of without prejudice offers and when they can be used in your favour.

 

Any offers headed fully 'Without Prejudice' would not normally be brought into proceedings and are a bargaining tool which cannot be entered into evidence by either party.

 

There are however a few dodgy DCA's out there who will chop out the heading and still enter your offer implying that you had made an earlier admission of a debt.

 

For my sins I've used without prejudice save as to costs on numerous occasions with creditors.

[chesham]

For small claims under £5k in the court, legal costs are not normally awarded, as the whole process is designed to be used by lay (i.e. "normal") persons, therefore it should not expose you to their legal costs at all?

[Bookworm]

Unless the claim is deemed vexatious or wholly unreasonable by the judge, that's correct.

[maddiemay]

Um, ok I see, there was nothing in the letter I wouldn't want the court to see, if anything it shows we tried to keep the matter out of court. The settlement was what they owe us minus the cost to finish the works, which the customer convieniently stopped shortly before the job was completed, witholding just short of £7,000. If we do end up taking them to court, it would fall within the small claims £5,000 cut off, in which case as the above poster says costs are not awarded??? although I would very much like to make them pay for my time.

I dont think we will be accepting anything less than what we have offered,does that mean we cant now sue for the total plus any out of pocket expenses. Sorry Ive just realised Ive butted in on someones post.

[phleck]

It's called thread hi-jacking :-P

 

Just an update for everyone, I've complained to the SRA (Solicitors Regulation Authority) about their solicitors. They've responded to me, saying that the LCS (Legal Complaints Service) are going to be in contact with me regarding the specifics of the complaint.

 

Thanks again everyone!

[phleck]

Hi all,

 

This is following this thread posted last year:

http://www.consumeractiongroup.co.uk/forum/general-consumer-issues/229256-threatened-solicitors-without-prejudice.html

(Thanks for everyones input there. Bookworm's letter was fantastic.)

 

I am taking a company, Medic Care, to a court for a small claims track because they mis-sold me advertising which is completely ineffective etc. I am claiming £700.

 

In the above thread, the defendants solicitors tried to intimidate me into backing down. I didn't.

 

Now I've received a letter stating again that they will "Make an application for costs" to the court, to order me to pay their costs.

Their claimed costs come to over £1,800.

 

I have scanned the letter:

 

Cover letter

Page 2 (Costs)

Page 3 (Costs)

Page 4 (Costs)

 

As I currently understand it:

 

They shouldn't have really sent me this letter.

This is an attempt at legal bedazzledment (as I don't have a solicitor).

They can't even claim these costs back unless I've acted unreasonably or vexaciously.

Even if the judge does award them with an order for me to pay legal costs, there is a maximum cost, MUCH lower than £1,800?

 

Any input will be greately appreciated!

Edited January 20, 2010 by phleck

[buzby]

Yes - if they win, they can apply for costs, and get them. It is a fallacy you only get hit if you;ve been vexatious or unreasonable. That is if the judge decides, however if the defender wins, they can ask (and get) regardless.

 

HOWEVER, these costs are capped in the Small Claims track, (at £100 max) so this would be the maximum you can be called to pay, UNLESS being vexatious/unreasonable adds to this total.

[phleck]

Hi Buzby,

 

Thanks for your reply, especially so fast!

 

They (Medic Care's Solicitors) are the defendants.

 

So basically and categorically, they cannot get £1,800 of us. (We've been very civil).

 

If the court orders us to pay legal fees, such legal fees will be capped at a maximum of £100?

 

In that case, it's definately worth us still going ahead with the trial!

 

Out of curiousity, what counts as vexatious or unreasonble?

Threats, violence, aggressiveness, other illegal/immorale things?

[buzby]

Yes - it is a scare, but pointless for Small Claims. It's all part of the bluff and counter bluff game played by the legal profession.

 

Reply by saying that once you have judgement, you'll be applying for all your costs too - (they'll be capped too, but hey, you don;t have to tell them you know that!).

 

Vexatious claims are usually applied to Pursuers who continuously take out action against a defender unreasonably (in the eyes of the court). The ultimate sanction is some litigants are actually banned from raising actions at all. But you'll not need to worry about this!

[phleck]

Thanks Buzby.

 

If there's anything I can help you with then PM me, email me or ring my company. (My profession is computers (repairs inc PCB repairs, laptops, sales, part sourcing, websites, programming, databases, networks, security).)

Edited January 20, 2010 by phleck

[buzby]

 

Good luck - and keep us posted!