Acknowledge of Service without a Particulars of Claim - CCMCC

[Ssssssssss]

You could always mention your response to his letter(s) in your witness statement and hope that the judge will ask to see the letters.

Hi Ostell, but can i do this as isnt the response "without prejudice" too implicitly ? (even though the first document really isnt !).

Or do you mean that i could use the fact that my letters don't explicitly say "without prejudice" in order to attempt to submit them as ambiguous as to whether they are also "without prejudice" ?

[Ssssssssss]

But if original letter is WP protected isn't all subsequent correspondence on that matter also protected, even if not marked WP?

Yes that is what i thought too. I did mark the response as open communication however i wrote "open communication to your without prejudice letter" which may well mean that it could be protected too.

I guess the point is that there has been no "genuine attempt to offer or settle the claim/dispute". It was made before we even mentioned court although he had mentioned court early on.

Additionally, the first email was simply about arrange a date to come and inspect work. The second letter was his response to our list of faults with a couple of the faults stating he would fix a tiny bit. The rest was denials of everything. Then the last sentence was just that he looked forward to arranging a date to fix those tiny few faults he thinks there are. (he offered the same in an open communication too so nothing new in the without prejudice letter other than a fabricated conversation about us approving things we didn't approve).

I'm not sure either of these letters therefore constitutes a "genuine attempt to offer or settle the claim/dispute" ? What are everyones thoughts on this firstly - my own view is that they are therefore not "without prejudice".

Secondly - if they arent a genuine attempt to offer and therefore not a genuine "without prejudice" status, then how do i tell the court this. I don't want them slapping me on the wrists for including the documents because they see the words without prejudice...

I really dont know how to tell the court and maybe ask for them to decide...or should i just include the things and then let the other side object if they want to ?

[des8]

You could always mention your response to his letter(s) in your witness statement and hope that the judge will ask to see the letters.

But if original letter is WP protected isn't all subsequent correspondence on that matter also protected, even if not marked WP?

[ostell]

You could always mention your response to his letter(s) in your witness statement and hope that the judge will ask to see the letters.

[Ssssssssss]

Your opponent has probably heard that all letters had to be headed WP without understanding what it is about. My last court argument was like that: 6 letters all headed " Without Prejudice Save As to Costs".

If you want to use the details from the letters as a statement of fact rather than offers then I believe you can ask the judge for a ruling.

Hi Ostell, Thanks for responding.

Yes i think they are obviously using the clause to hide any conversations as we have never entered into a settlement negotiation with them.

It sounds like you are having to deal with this kind of mistake often !

Could you tell me:
1 if i just include reference to anything in the documents anyway and just state in my defence form that i do not agree with the WP status of the documents because they have no discussion regarding settlement in them. Then maybe just let him dispute it ? OR am i risking him trying to get the thing struck out if i do that ?

2. do i make a separate application to the court using n244 ? filing n244's seems to be quite expensive !!

3. Do i just inform the court in writing that it needs to be reviewed and ask for direction ?

Really dont know the process and the right process to use ?

[ostell]

Your opponent has probably heard that all letters had to be headed WP without understanding what it is about. My last court argument was like that: 6 letters all headed " Without Prejudice Save As to Costs".

If you want to use the details from the letters as a statement of fact rather than offers then I believe you can ask the judge for a ruling.

[Ssssssssss]

Hello all, I really need help to understand what to do with this one.

So I've received a claim form - served on 4th September. The claim is small and is for us withholding final instalment payment to a builder who has done a poor job.

My question really is in regard to how i can write my defence and counterclaim as a few of the emails and letters that the claimant sent me were marked as "without Prejudice". I've tried to find out as much as i can about this and have come to the conclusion that "without prejudice" cant really apply as they aren't pertaining to any genuine offer of settlement. BUT I dont know how to tell the court this at this stage so that they understand that if i submit the documents and use them in my defence and counterclaim form, i think i have a right to. I'm also scared that if this starts getting to complicated, the court might allocate to a different track to small claims.

First document that had without prejudice :-
An Email in response to our letter setting out all the faults in our bathroom and saying they had breached their contract by not using care and skill etc.
The email response that was without prejudice makes a subtle accusation that we broke our own tile and then says that they only do top end work. Then it offers to inspect the work and write a report in order to decide what to do next. There is nothing else in the content really other than that.

Second document that had without prejudice:-
After the builders inspection, he sent us his "report" in the form of a letter and this had without prejudice stated at the top. The report simply went through the issues we had stated and said whether they agreed with there being a problem or not. The vast majority they disputed and only admitted to the broken tile and the odd crack "that might have appeared after they finished". Everything else was a denial and they also detailed a set of conversations with us which simply did not happen saying we approved a tile which we did not do. At the end of this document it simply states that "I now look forward to hearing from you with a date when we can complete the work." This document also details an admission to the shower not being the one we asked them to put in.

Really need help to understand if these are without prejudice at all ( my view is that they arent anythnig to do with an offer of settlement but maybe someone could shed some light as maybe offering to fix the odd one or two things is a "genuine offer to settle the dispute ?". I also need help in understanding how i should deal with this in terms of court and do i still need permission to submit these documents ? do they get reviewed before a judge sees them and then the court decides or do i have to decide ?

HELP !

[jaguarsuk]

Yes, I think this might have been his attempt at getting in there first so to speak but he has made rash judgement calls throughout the dispute and threatened us with legal action for unpaid debt only 2 days after leaving our home when we said we needed to inspect the work before making a final payment.

I think all you can do is defend as Ostell has said in post #3

[Ssssssssss]

Defending and claiming are very different, so I wouldn't put to much stock in the previous dealings. Seems to be someone whom doesn't know what they are doing at all.

Yes, I think this might have been his attempt at getting in there first so to speak but he has made rash judgement calls throughout the dispute and threatened us with legal action for unpaid debt only 2 days after leaving our home when we said we needed to inspect the work before making a final payment.

[jaguarsuk]

Hi Jaguarsuk

Yes I think the claimant probably does not know he has made such an error which is now causing these issues. The claimant is an individual (sole trader). I know he has been in the court process quite often though as I've seen he has 2 cci's against an old limited company he has.

Thats why I'm quite surprised at the omission. Im just worried that he will come back and file something later on and the court will think that me filing my acknowledgement of service, i've admitted that i now have a POC when i don't

Defending and claiming are very different, so I wouldn't put to much stock in the previous dealings. Seems to be someone whom doesn't know what they are doing at all.

[Ssssssssss]

Okay cool, you'll need to acknowledge the claim ( with intent to defend in full presumably) and defend on the brief details of claim, pointing out if they don't comply with PD 16. Are the brief details of claim enough for you to actually know what the claim is regarding ?

FYI, should i also mention that they did not comply with pre-action protocol. they didn't reply to question whether they are willing to use ADR scheme and also didn't issue a letter before claim.

[Ssssssssss]

Okay cool, you'll need to acknowledge the claim ( with intent to defend in full presumably) and defend on the brief details of claim, pointing out if they don't comply with PD 16. Are the brief details of claim enough for you to actually know what the claim is regarding ?

Thanks Amethyst

The details of claim are quite funny but they do say they are claiming for a final instalment of building work that we have withheld. They say that we have said that the work doesn't use skill and care and has provided products not as described under consumer right act 2015 is untrue.
They ask why we haven't gone to trading standards
They say we don't have an independent report
They say the contract they are basing this on is dated 17th May except that isn't the date we agree as we signed and paid on 23rd April !

They haven't put anything else really. No detail whatsoever.

[Amethyst]

Hi Amethyst,

The form came from the money claim centre in salford. There was no statement saying any particulars of claim were to follow. He did not state anything in the field, or state whether they were attached or to follow. I checked with salford to make sure there wasn't any error on their part not forwarding me anything and they said it wasn't and that the claimant had not given a particulars of claim separately or otherwise

Okay cool, you'll need to acknowledge the claim ( with intent to defend in full presumably) and defend on the brief details of claim, pointing out if they don't comply with PD 16. Are the brief details of claim enough for you to actually know what the claim is regarding ?

[Ssssssssss]

I'd assume that the claimant doesn't know they have to complete the PoC and think that by putting the info in the Brief Details box that is sufficient.

Is the claimant an individual or company (not a solicitor) acting for themselves?

Hi Jaguarsuk

Yes I think the claimant probably does not know he has made such an error which is now causing these issues. The claimant is an individual (sole trader). I know he has been in the court process quite often though as I've seen he has 2 cci's against an old limited company he has.

Thats why I'm quite surprised at the omission. Im just worried that he will come back and file something later on and the court will think that me filing my acknowledgement of service, i've admitted that i now have a POC when i don't

[Ssssssssss]

So you acknowledge so that there can be no application fro default judgement after 14 days and your defence will be no case to answer as there is no particulars of claim and it is embarassing to have to defend with no details and ask that the claim be struck out.

Your understanding of no need to acknowledge until particulars are received is correct but the court staff don't sometimes understand this and will allow a default judgement application.

Hi Ostell,

Yes i think that is probably the best thing to do as the staff really didn't know about the particulars of claim at all and to be in the safe side i thought i'd just file the acknowledgement. I thought maybe i should write a stern letter to them to ensure that its all on file that i did ask them.

Or maybe ask the claimant if he is intending to file anything further just in case he comes back after my defence and says he wants to file one ?