No response to a part 36 offer... what can be inferred?

[Stephen]

In a dispute regarding professional negligence, the opposing side had
continued to deny liability. They asked us to show how we would prove
that their client was negligent in court.

So we sent copies of evidence along with a part 36 offer and invited
them to reconsider matters, and to give them a chance to accept or
decline the part 36 offer by a certain deadline.

That deadline has now passsed.

No response at all has been recieved from the opposing side. as in no
further correspondence and no explicit acceptance or rejection of the
part 36 offer.

What can we infer from this?

[The Todal]

If your opponents is not represented by insurers or lawyers, then they
are now, quite likely, placing the matter in the hands of such people.

If they are represented by insurers, they might be taking advice from
lawyers before responding. 21 days is rarely enough time to take advice.

If they are represented by lawyers, they might be asking a barrister to
give an opinion.

If I were your lawyer I'd ring them up and say "we're now about to incur
further costs and commence proceedings - can you just confirm that the
offer is rejected, please?". Or something of that sort. The reply might
be "oh, just give us another 14 days, we might be able to make you an
offer">

[Stephen]

On 25/04/2014 08:57, The Todal wrote:
> On 25/04/2014 08:25, Stephen wrote:
>> In a dispute regarding professional negligence, the opposing side had
>> continued to deny liability. They asked us to show how we would prove
>> that their client was negligent in court.
>>
>> So we sent copies of evidence along with a part 36 offer and invited
>> them to reconsider matters, and to give them a chance to accept or
>> decline the part 36 offer by a certain deadline.
>>
>> That deadline has now passsed.
>>
>> No response at all has been recieved from the opposing side. as in no
>> further correspondence and no explicit acceptance or rejection of the
>> part 36 offer.
>>
>> What can we infer from this?
>
> If your opponents is not represented by insurers or lawyers, then they
> are now, quite likely, placing the matter in the hands of such people.

The opponent had self-represented himself for 2 years before getting
frustrated in not resolving the matter and has now handed the matter
over to a firm of solicitors about 2 months ago. We sent the Part 36
offer just over 3 weeks ago.

> If they are represented by insurers, they might be taking advice from
> lawyers before responding. 21 days is rarely enough time to take advice.

The opponent has now finally admitted last December to having no PII at
the time of the incident of professional negligence which occurred in
December 2011 and also admits to failing to obtain runoff insurance when
he ceased trading in late 2012. It is a sole proprietorship and so he
can personally still be held liable.

> If they are represented by lawyers, they might be asking a barrister to
> give an opinion.

Surely, they would at least write and say "We need more than 21 days" so
that we don't incur additional costs....

> If I were your lawyer I'd ring them up and say "we're now about to incur
> further costs and commence proceedings - can you just confirm that the
> offer is rejected, please?". Or something of that sort. The reply might
> be "oh, just give us another 14 days, we might be able to make you an
> offer">

well my solicitor is sending a chase up letter asking if liability is
still denied to the letter of response containing the Part 36 offer and
the evidence proving professional negligence and that an answer is
expected within 14 days.

[Paul Rudin]

Yeah, assuming proceedings have not been issued already.

On the P36 offer specifically-

A rejection of the offer is not really relevant as far as p36 goes as it
remains open for acceptance unless explicitly withdrawn (but as
suggested above indicates that you might want to take action).

If the relevant period has expired the offer may be withdrawn (or
substituted with a less favourable offer).

The offer remains open for acceptance until it has been withdrawn.

Of course the a failure to accept will have specific consequences if the
matter goes to trial and they do not do better than the offer (which is
the main point of p36).

[Stephen]

No proceedings have been issued yet. This was an attempt to try and
resolve the matter as we have to show that we have made every effort to
resolve the matter without going to court.

> On the P36 offer specifically-
>
> A rejection of the offer is not really relevant as far as p36 goes as it
> remains open for acceptance unless explicitly withdrawn (but as
> suggested above indicates that you might want to take action).

so why the 21 days limit then if the offer still remains open unless
explicitly withdrawn?

> If the relevant period has expired the offer may be withdrawn (or
> substituted with a less favourable offer).

Surely then to prevent the offer being withdrawn and replaced with a
less favourable one, they would at least write and say "we need more
time to consider matters if they felt unable to accept it within 21 days
due to needing time to consider matters?

> The offer remains open for acceptance until it has been withdrawn.
>
> Of course the a failure to accept will have specific consequences if the
> matter goes to trial and they do not do better than the offer (which is
> the main point of p36).

So does the fact that no response has been received count against them
if it goes to court?

[The Todal]

Okay, based on the additional information you've given, it seems that
the defendant is having to contemplate paying a large sum out of his own
pocket without any help from insurers.

That makes a big, big difference.

The lawyers may have said to him "we recommend you authorise us to make
a counter-offer". He might have said to them "look, I don't know how
much money I can raise, I need to go through my finances, don't
pressurise me, I'll get back to you" and then he might have inserted his
head back into the sand.

[Chris R]

>
>
> "Stephen" wrote in message news:bsp6v.138312$Nz7....@fx27.am4...

Surely a Part 36 offer by the claimant doesn't have much significance
anyway - its main use is by the defendant, to put the claimant in costs
jeopardy if he doesn't meet the offer.

If you've complied with the pre-action protocol I would get on an issue
proceedings (if you haven't already), and don't hang about waiting for
replies that may never come. the defendant may just want to spin things out
for as long as possible, while he busily transfers assets to his family.
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[Chris R]

>
>
> "Stephen" wrote in message news:e9q6v.65891$Y24....@fx03.am4...

> On 25/04/2014 09:43, Paul Rudin wrote:
> > The Todal <deadm...@beeb.net> writes:
> >
> >> On 25/04/2014 08:25, Stephen wrote:
> >>> In a dispute regarding professional negligence, the opposing side had
> >>> continued to deny liability. They asked us to show how we would prove
> >>> that their client was negligent in court.
> >>>
> >>> So we sent copies of evidence along with a part 36 offer and invited
> >>> them to reconsider matters, and to give them a chance to accept or
> >>> decline the part 36 offer by a certain deadline.
> >>>
> >>> That deadline has now passsed.
> >>>
> >>> No response at all has been recieved from the opposing side. as in no
> >>> further correspondence and no explicit acceptance or rejection of the
> >>> part 36 offer.

>

> No proceedings have been issued yet. This was an attempt to try and
> resolve the matter as we have to show that we have made every effort to
> resolve the matter without going to court.
>

> So does the fact that no response has been received count against them if
> it goes to court?
>

No, the court won't care about his tactics, unless he manages to string you
along until the limitation period expires.

If this is the same case that we have discussed before, you seem strangely
reluctant to issue proceedings. Defendants like to delay and procrastinate.
Claimants have to drive the claim forward to judgment. If you don't appear
to be committed, it will make the defendant hope that you will eventually
give up.

[Stephen]

On 25/04/2014 12:44, Chris R wrote:
>>
>>
>> "Stephen" wrote in message news:e9q6v.65891$Y24....@fx03.am4...
>> On 25/04/2014 09:43, Paul Rudin wrote:
>>> The Todal <deadm...@beeb.net> writes:
>>>
>>>> On 25/04/2014 08:25, Stephen wrote:
>>>>> In a dispute regarding professional negligence, the opposing side had
>>>>> continued to deny liability. They asked us to show how we would prove
>>>>> that their client was negligent in court.
>>>>>
>>>>> So we sent copies of evidence along with a part 36 offer and invited
>>>>> them to reconsider matters, and to give them a chance to accept or
>>>>> decline the part 36 offer by a certain deadline.
>>>>>
>>>>> That deadline has now passsed.
>>>>>
>>>>> No response at all has been recieved from the opposing side. as in no
>>>>> further correspondence and no explicit acceptance or rejection of the
>>>>> part 36 offer.
>
>>
>> No proceedings have been issued yet. This was an attempt to try and
>> resolve the matter as we have to show that we have made every effort to
>> resolve the matter without going to court.
>>
>> So does the fact that no response has been received count against them if
>> it goes to court?
>>
> No, the court won't care about his tactics, unless he manages to string you
> along until the limitation period expires.

And the limitation period i ssix years I believe?

> If this is the same case that we have discussed before, you seem strangely
> reluctant to issue proceedings. Defendants like to delay and procrastinate.
> Claimants have to drive the claim forward to judgment. If you don't appear
> to be committed, it will make the defendant hope that you will eventually
> give up.
>

It is not me that is "strangely reluctant to issue proceedings" its my
solicitor who is being funded by my buildings insurance company. He has
to get budgetary permission from a practice manager every time to write
a letter and post off.....

I get the impression that the insurance company & solicitor concerned
are trying to exhaust all "cheaper" options at resolving the case with a
part 36 offer before committing significant funds to issuing court
proceedings.

Budgetary and insurance company approval has to be obtained before the
solicitor concerned can issue court proceedings.

So the solicitor has basically sent off a chase up letter enquiring if
liability is still denied with respect to our last letter of response
and part 36 offer and has put a time limit of 14 days on it for a
response. We shall see what comes back.

[Paul Rudin]

Stephen <i_lov...@spam.com> writes:

> On 25/04/2014 09:43, Paul Rudin wrote:
>>
>> A rejection of the offer is not really relevant as far as p36 goes as it
>> remains open for acceptance unless explicitly withdrawn (but as
>> suggested above indicates that you might want to take action).
>
> so why the 21 days limit then if the offer still remains open unless explicitly
> withdrawn?

There are potentially different costs consequences for those costs
incurred after the end of the relevant period. But the idea is still
that it's a mechanism to promote settlement, I suppose framing the rule
in this way facilitates that. Have a look at part 36.
<http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part36>

>
>> If the relevant period has expired the offer may be withdrawn (or
>> substituted with a less favourable offer).
>
> Surely then to prevent the offer being withdrawn and replaced with a less
> favourable one, they would at least write and say "we need more time to
> consider matters if they felt unable to accept it within 21 days due to needing
> time to consider matters?

They may do, but the rules allow you withdraw the offer after the end of
the relevant period if you've not been served with an
acceptance. Whether you do or not is of course up to you, unless you
have significantly different information from when the offer was made,
you're probably happy for the offer to remain open.

>
>> The offer remains open for acceptance until it has been withdrawn.
>>
>> Of course the a failure to accept will have specific consequences if the
>> matter goes to trial and they do not do better than the offer (which is
>> the main point of p36).
>
> So does the fact that no response has been received count against them if it
> goes to court?

There's no specific part 36 consequence. But conduct generally can count
against parties when it comes to assessing costs. In particular if
there's a failure to comply with a relevant pre-action protocol; or if
there is none, the practice direction on pre-action conduct.

[Paul Rudin]

Stephen <i_lov...@spam.com> writes:

>
> And the limitation period i ssix years I believe?

Yes, for a claim in negligence, as long as it's not a claim involving
personal injury, in which case it would be 3 years.

[Paul Rudin]

"Chris R" <inv...@invalid.munge.co.uk> writes:

> Surely a Part 36 offer by the claimant doesn't have much significance
> anyway

It has significance in assessing costs. If a claimant makes a part 36
offer which is not accepted and then not bettered at trial by the
defendant the normal situation is this (subject to the court's
discretion):

- interest at not more than 10% + base on the damages from the end of
the relevant period;
- costs on the indemnity basis from the end of the relevant period, and
interest at not more than 10%+base on those costs;
- an additional amount (capped at £75,000) of 10% on the first £500,000
of damages and 5% of the next £500,000 of damages.

See 36.14

<http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part36#36.14>

[Ian Jackson]

In article <afs6v.100529$wa2....@fx05.am4>,

Stephen <i_lov...@spam.com> wrote:
>It is not me that is "strangely reluctant to issue proceedings" its my
>solicitor who is being funded by my buildings insurance company. He has
>to get budgetary permission from a practice manager every time to write
>a letter and post off.....

This is worrying. The longer this goes on, the longer the crooked
surveyor has to make it more difficult to sell his house to pay your
bills.

In your position I would be wondering whether to start to get shirty
with my buildings insurance. I'd be reading the insurance contract
carefully and considering writing a letter accusing them of failing to
pursue the dispute efficiently, or something.

--
Ian Jackson personal email: <ijac...@chiark.greenend.org.uk>
These opinions are my own. http://www.chiark.greenend.org.uk/~ijackson/
PGP2 key 1024R/0x23f5addb, fingerprint 5906F687 BD03ACAD 0D8E602E FCF37657

[Percy Picacity]

On 2014-04-27 16:07:45 +0000, Ian Jackson said:

> In article <afs6v.100529$wa2....@fx05.am4>,
> Stephen <i_lov...@spam.com> wrote:
>> It is not me that is "strangely reluctant to issue proceedings" its my
>> solicitor who is being funded by my buildings insurance company. He has
>> to get budgetary permission from a practice manager every time to write
>> a letter and post off.....
>
> This is worrying. The longer this goes on, the longer the crooked
> surveyor has to make it more difficult to sell his house to pay your
> bills.

snip

The surveyor may have made a mistake. This probably resulted in a
loss to the OP of a size that is open to interpretation. The surveyor
is reluctant to pay money to the OP that he can probably ill afford
unless he has to. I don't think this make the surveryor "crooked".
Indeed, he may be desperate. It may well be that he will not, perhaps
for personal or family reasons, agree to pay anything unless a court
orders him to. Again, I really don't think this make him a "crooked".
Though he may be guilty of expensive indecisiveness.

--

Percy Picacity

[Clive George]

On 27/04/2014 19:07, Percy Picacity wrote:
> On 2014-04-27 16:07:45 +0000, Ian Jackson said:
>
>> In article <afs6v.100529$wa2....@fx05.am4>,
>> Stephen <i_lov...@spam.com> wrote:
>>> It is not me that is "strangely reluctant to issue proceedings" its my
>>> solicitor who is being funded by my buildings insurance company. He has
>>> to get budgetary permission from a practice manager every time to write
>>> a letter and post off.....
>>
>> This is worrying. The longer this goes on, the longer the crooked
>> surveyor has to make it more difficult to sell his house to pay your
>> bills.
>
> snip
>
> The surveyor may have made a mistake.

More than one. Getting the survey wrong is one part, failing to have
insurance or get run-on insurance is the other.

[David.WE.Roberts]

On Fri, 25 Apr 2014 08:25:08 +0100, Stephen wrote:

> In a dispute regarding professional negligence, the opposing side had
> continued to deny liability. They asked us to show how we would prove
> that their client was negligent in court.
>
> So we sent copies of evidence along with a part 36 offer and invited
> them to reconsider matters, and to give them a chance to accept or
> decline the part 36 offer by a certain deadline.
>
> That deadline has now passsed.
>

> No response at all has been received from the opposing side. as in no

> further correspondence and no explicit acceptance or rejection of the
> part 36 offer.
>
> What can we infer from this?

All you can infer is that they don't wish to accept the offer at this
time, or make a counter offer.

There is not necessarily any logic involved.

I hear recently of a dispute where a Part 36 offer was made and rejected,
the parties went to court, were directed to go to mediation, and went
through mediation with no agreement, and then just before going back to
court the defendants agreed to the Part 36 offer.

Which makes no sense to me as nothing had changed and the defendants could
have saved a lot of time and money (including the cost of the failed
mediation) by just accepting the Part 36 in the first place.

Having read the rest of the thread the defendant may just be putting off
the evil day - seeing no benefit in settling until finally forced to.

I have only recently been introduced to Part 36 offers and find the whole
thing fascinating - elements of plea bargaining, factoring of invoices,
discount for prompt payment, wagering on the outcome of a contest, bluff
and counter bluff, upping the risk level. Students of games theory should
probably be consulted when making any Part 36 offer.

As I think has already been noted any deadline your side sets may not be
greatly significant in legal terms - as I understand it.

Cheers

Dave R