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Stephen Gold: “No bias” won’t work if you try to use it as a cover for inappropriate comments like “Reject my offer and I’ll tell a bunch of lies in court.” I’m a better liar than you.
Stephen Gold is a retired judge and author who has written popular series for This is Money on how to be a successful executor, writing a will, bankruptcy and consumer rights.
In the first part of his new guide to the cost of taking legal action, he explained court fees, in the second part how to reduce bills, and in the third part mediation.
Today explore other strategies to reach an agreement.
In a civil case, someone will win and someone will lose. In a family case, many times there are no winners.
Although in a civil case the parties, or one of them, may have in mind to settle to some extent, they may feel that it is strategically preferable to postpone the investigation of a settlement.
This could be until after a court case has been filed and some of the procedural steps that would lead to a full trial have been taken (and there are quite a few).
By then, possibly after useful documents and even witness statements have been revealed, the opposition could be backing down. The strategy may be the right one.
But whenever a claim (or defense) is presented to the other party, it should be stated as firmly as possible, without going overboard, as this can be counterproductive.
If compensation is requested other than a fixed amount set by law, it may be at the upper end of what would be an appropriate range to leave room for negotiation, although not inflated to a ridiculous level, so that too may be counterproductive.
Ways to reach an agreement: using protocols
Before a court case is initiated, the system sets a backdrop for negotiations that are estimated to lead to an agreement.
This is achieved through the parties’ compliance with what is called a “protocol” that is tailored to the particular category of claim.
There are 16 different protocols for 16 different categories. You will find them at the back of the Civil Procedure Rules 1998 once you’ve finished enjoying your ‘Game of Thrones’ box set.
These include protocols for claims for home repairs, personal injuries, negligence of professionals (although certainly not former judges advising on This is Money and MailOnline), package holidays, commercial and public authority debts and construction and engineering disputes .
Each protocol requires that you send your opponent a letter setting out specific details about what you are saying and asking for and requires that your opponent return with a detailed response within a period that, depending on the protocol, can range from two weeks to three months.
If you don’t follow protocol and sue, you won’t be jailed, but a judge may stop your claim until you’ve done what you should have done, or you may end up having to pay the other party’s legal costs and expenses – or both.
Where your case is not covered by a protocol, similar principles apply and you should write to the other party before suing and give them a reasonable time to respond.
The timing is not set in stone, but the guidelines say two weeks when the matter is simple and no more than 30 days in a very complex case.
Persuading the other party to reach an agreement: “non-judgmental” letters
At the same time as sending a formal complaint letter or even before, you can try to resolve the dispute by dangling a carrot (it does not have to be organic) on the other side.
When you do so you should write ‘without prejudice’ at the top of the communication.
That way, the communication cannot be used against you in court if it does not lead to an agreement.
However, this protection won’t work if you try to use it as a cover for inappropriate comments like “Reject my offer and I’ll tell a bunch of lies in court.” I’m a better liar than you. Something like this can work.
Whenever a claim (or defense) is raised with the other party, it should be done as firmly as possible, without going overboard, as this can be counterproductive.
Dear Legal Department
Re invoice B24/1796
I have separately provided you with all the details of your company’s breach of contract. If I am required to bring a county court claim against you, I will seek:
(a) damages of £XXX;
(b) interest on those damages at the rate of £8.00 per cent per annum from the date of default until judgment;
(c) all court fees I must pay, including any hearing fees that will be incurred for a contested hearing;
(d) travel expenses and loss of income for me and my witnesses at a contested hearing;
(e) an allowance of £19 per hour as a litigator in person for the time spent on the claim, including time in court and travel to and from, on the basis that in defending the claim your company will have behaved unreasonably in all the circumstances of this case.
I would prefer not to have to go to court because I have better and more productive things to do with my time.
However, I will have no qualms about suing your company if necessary.
In a spirit of compromise and with a view to a prompt resolution of the matter, I am willing to fully and finally accept the sum of £YYYY of my claim OR I am willing to waive my claim for interest provided I receive it from you. the sum of £ZZZ within 14 days of the date of this communication.
This offer will expire at the end of said period.
In more substantial claims, it may be to your advantage to focus the other party’s mind on the negotiation by making them a written offer to resolve their claim during a case, or even before.
This is an offer under part 36 of the Civil Procedure Rules 1998 and I recommend that you use the elegantly named form N242A to do this.
You will be offering the other party specific terms on which you are willing to settle.
If the offer is not accepted, the details of the offer will be kept hidden from the judge until the case has been decided.
The consequences for the other party could be dire if the offer is not accepted, the case goes to trial and the judge gives you what you were offering to accept or more.
They will likely have to pay you an additional 10 percent for any compensation awarded, with different percentages for a mega award of more than half a million.
Furthermore, everyone should recover their expenses from the other party along with interest on damages and costs.
Bidding at the appropriate level is an art and legal advice is recommended.
Turn to an Ombudsman
There is an Ombudsman for almost everything, although they have not yet managed to appoint an Ombudsman for toilet brush manufacturers.
Among those most in demand are ombudsmen for financial services, legal services, housing and, more recently, new housing.
Normally, the Ombudsman service decides on a complaint based on the documents submitted by each party, so there is no possibility of destroying the opposition in the witness box.
The service will be free and will therefore be a useful alternative to court proceedings in lower value disputes, although the Housing Ombudsman, who mainly deals with complaints against social landlords, has issued in recent weeks some really considerable compensations.
And if you do not agree with the Ombudsman’s decision, you can always reject it and file a legal claim.
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