How do Without Prejudice save as to costs offers work? And what if I am ill?

[Antrc]

For example. I take a company on for an alleged £350 owed. They offer £250 on a WITHOUT PREJUDICE SAVE AS TO COSTS basis. I then turn this down and offer to settle for the full £350, which they ignore. I am awarded the £350 at trial. Do I get my time paid for re: lost earning? Also, if I am ill the day of the hearing, what happens? Currently have flu and might not be right by Wednesday. Do I get a doctors note and request an adjournment?

[jaguarsuk]

For example. I take a company on for an alleged £350 owed. They offer £250 on a WITHOUT PREJUDICE SAVE AS TO COSTS basis. I then turn this down and offer to settle for the full £350, which they ignore. I am awarded the £350 at trial. Do I get my time paid for re: lost earning? Also, if I am ill the day of the hearing, what happens? Currently have flu and might not be right by Wednesday. Do I get a doctors note and request an adjournment?

You'll get witness expenses if you have had to take unpaid time off work to attend the hearing, which you'll need to evidence and the cost of that day.

If you think you may not be able to attend through illness it would be more wise not to leave it until the day, let the court know tomorrow to allow them to set another hearing date and inform the defendant.

The letters heading simply means that they can't be used as evidence in court until after a ruling has been made and only in any costs considerations, in other words you can't whip the letter out and ask why they are offering to settle if they deny the claim.

I think the flaw in your negotiating strategy is that the parties generally negotiate by moving toward each other, hence why they have ignored you. I think you might have been able to agree at £300.

[Antrc]

Aren't there cost implications if they won't settle for an amount that later is awarded in Court?

[R0b]

Not for cases on the small claims track which I assume this is based on the sum involved.

An adjournment actually requires an application to be made, you run the risk that the court presses ahead without you even if you write to them saying you can't make it. Best getting the other side's consent to an adjournment too and put them on notice.*

[Antrc]

But if you made an offer to settle for less on a Without Prejudice Save As To Costs basis?

[R0b]

That's only applicable if costs are in issue. As the small claims track does not allow for the recovery of legal costs the letter is pretty much irrelevant because much of the rules around offers and settlement don't apply.*

You are entitled to small costs such as witness costs, travel and application fees but other than that, they would have to prove unreasonable conduct. Refusal of an offer in of itself is not deemed unreasonable conduct but may be taken into account when applying the reasonableness test.

It really depends on the facts and circumstances as to why you rejected the £250. If it is because the money claimed is a debt then the answer is simple, why should you have to settle for less when you believe that you are rightly owed £350. Equally, if they made a last minute offer to settle the case or the claim was based on a point of law where there is no legal authority, they might be reasons that permit your conduct. If, on the other hand it is damages for compensation of an amount by which you have plucked out of thin air as a best guess, your conduct may be harder to explain why you were justified in rejecting an offer to settle when the difference between what you want and they are prepared to agree, is nominal.



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[Antrc]

I am most certainly owed the full £350 and believe a Judge will agree.

The company made a WITHOUT PREJUDICE OFFER SAVE AS TO COSTS to settle for £250. I rejected, made a £350 offer. They ignored and one month later invited me to make another offer. I made an offer for £400, to include four hours of my time preparing my Witness Statement and some evidence. They rejected as "more than the value of the claim," despite my warning them weeks before I was now charging them for my time.
Thoughts?

[jaguarsuk]

I am most certainly owed the full £350 and believe a Judge will agree.

The company made a WITHOUT PREJUDICE OFFER SAVE AS TO COSTS to settle for £250. I rejected, made a £350 offer. They ignored and one month later invited me to make another offer. I made an offer for £400, to include four hours of my time preparing my Witness Statement and some evidence. They rejected as "more than the value of the claim," despite my warning them weeks before I was now charging them for my time.
Thoughts?

You won't get anything for your time, as has been said above costs are very limited and only if they are unreasonable in conducting the claim would they even be considered.

If you win you'll get the value of the claim plus court fees and witness expenses if they have arisen (reimbursement of unpaid time off work, parking cots and postage costs etc.). A good offer would be to offer them to settle at £350 plus half of the total cost of the court fees you have paid and this to be done by way of a consent order with them paying the fee to seal it by the court, as it wouldn't have been required had they paid what is owed when the letter before action was sent.

Remind them that if successful in court you intend to ask for all of the court fees, plus witness expenses, interest at 8% pursuant to s.69 of the County Court Act 1984 from the date the amount was owing to the date of the judgement (limited to one year) and incidental costs to manage the claim such as postage etc.

It sounds from how they are responding to you that you are dealing with a solicitor either in their company or one they've engaged to represent them, so they know that you can bluster about your time all you want, but you won't be getting anything in court for it.

This sort of response should for them be a stark change in language and show that you have sought advice somewhere, it should prick their ears up if they know they can't win and make them think there's a possibility you will be represented in court instead of being Litigant in Person.

If they are in agreement to settle, you'll need to draft a consent to stay the claim, them pay you what ever figure is you are settling at, parties bear their own costs, defendant pay the cost of sealing the consent order and leave to apply.

If they refuse then on the day at court pull them aside for a without prejudice chat and ask the question again, it's been known for companies to take it right down to the wire only to settle in the court building when they see you have turned up.

[Antrc]

Thanks jaguarsuk*but still super confused,. I thought the whole point of a without prejudice save as to costs order from a Defendant was so they could threaten you with "turn this down and if you are not awarded any more in Court we can recover our legal fees." So does the same not apply for me if I am awarded more? i.e. if I win £100 more than they offered, after offering to settle for just what is awarded on a without prejudice save as to costs basis (which they turned down), are they not responsible for paying for my time at the LIP rate of £19 per hour? For putting all the evidence together, attendign on the day, etc.

[2222]

I am most certainly owed the full £350 and believe a Judge will agree.

The company made a WITHOUT PREJUDICE OFFER SAVE AS TO COSTS to settle for £250. I rejected, made a £350 offer. They ignored and one month later invited me to make another offer. I made an offer for £400, to include four hours of my time preparing my Witness Statement and some evidence. They rejected as "more than the value of the claim," despite my warning them weeks before I was now charging them for my time.
Thoughts?

When is the hearing?**Tactically, if you are ill and turn up coughing and spluttering over them, you may get a last minute settlement offer. There's no sense in their getting ill to save £350.

What you can realistically expect the court to award you is your £350 (if you win hands down!) plus any court fees you have paid. Plus interest, if you claimed it, at 8%, which won't amount to much.

IF you can prove loss of earnings for attending the hearing with evidence, you may get that awarded too, but courts seem rather reluctant.

[jaguarsuk]

Thanks jaguarsukbut still super confused,. I thought the whole point of a without prejudice save as to costs order from a Defendant was so they could threaten you with "turn this down and if you are not awarded any more in Court we can recover our legal fees." So does the same not apply for me if I am awarded more? i.e. if I win £100 more than they offered, after offering to settle for just what is awarded on a without prejudice save as to costs basis (which they turned down), are they not responsible for paying for my time at the LIP rate of £19 per hour? For putting all the evidence together, attendign on the day, etc.

They can threaten all they like, but it doesn't mean they'll get.

Refusing an offer to settle for less than is claimed then losing the claim is not unreasonable conduct in itself and so they wouldn't get costs based on that. The fact they are threatening to try to get you to settle suggests they think the are likely to lose, but when you make outlandish offers they're not going to just settle.

As for you getting costs as LiP you have to prove unreasonable conduct on the claim for them to be considered, but just like you refusing their offer isn't unreasonable conduct, neither is them refusing yours.

Stop thinking you are entitled to get anything more than the £350 claimed, court fees, witness expenses, interest and ancillary costs such as postage, it'll be less confusing then. You won't, it's very rare any sort of meaningful costs are awarded against a party in the small claims track.

[Antrc]

Okay, so what would likely happen in the scenario that I start a claim for £350. They offer £250 on a Without Prejudice Save As To Costs basis, and I reject it. I then make an offer for the full £350 (without prejudice save as to costs), and I warn them that if they don't accept I will be adding on to the total for my time. They ignore the offer. They invite me to make another offer a month later, which I do, without prejudice save as to costs, adding £50 for three hours of my time - so I offer £400. They then turn it down, stating that it is more than the total claim. We go to Court. I win the full £350. What happens then, when cost implications are considered?

[MIKE770]

Litigants if awarded cost is £19 pere hour subject to scrutiny

[R0b]

You don't seem to be listening to what people are telling you. If the case is allocated to the small claims track, costs are very restrictive - end of.

The only costs you are entitled to are your application fees and costs as a witness which is about 80 quid and that's if you ask the court for these fees. If you don't then you will only get £350.

Only if you can show unreasonable conduct can a court award you additional costs and that bar is high.

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[Antrc]

K I get it now. Thank you for your patience everyone.*