Part 36 offer

[andrew1]

Hi guys and gals,

I have a part 36 offer which I accepted from a finance company on a challenge I made to the account. The 21 days are well and truly over.

They raised a Tomlin Order which added conditions I am not happy with, I said as much and they are refusing to change it. Can anyone tell me whether I can use any particular law or CPR ( I've seen CPR s. 36.3 (6) ) to challenge the clause I am unhappy about by saying ' that wasn't in the part 36 I accepted'?

They are saying that if I don't accept then they will proceed with the original litigation..can they do this?

[Guest]

Re: Part 36 offer

Had you agreed to the Tomlin Order or was this raised, or changed, after you accepted the Part 36 offer?

[righty]

Re: Part 36 offer

A Tomlin Order (named after Judge Tomlin) requires both parties signature & if they have added terms without mutual agreement the order is unenforceable & any offer made would not be considered as a genuine attempt to settle

Do you have any evidence of what was originally agreed?

[righty]

Re: Part 36 offer

Also read this
Tomlin: a guide to use and abuse | The Law Gazette


You will note that a TO isn't suitable where a money claim is concerned

[andrew1]

Re: Part 36 offer

A Tomlin Order (named after Judge Tomlin) requires both parties signature & if they have added terms without mutual agreement the order is unenforceable & any offer made would not be considered as a genuine attempt to settle

Do you have any evidence of what was originally agreed?

Well I have the Part 36 Offer in writing. I accepted that Offer and that was the basis of the settlement. The Tomlin Order has been created AFTER I agreed the part 36 Offer and was sent with a Consent Order which I presume, as there is a date to comply to this with the court, what will be presented to the court as the ' Settlement'.

The clause in question that I am balking about is a cover-all clause stating that I cannot make any further claims which I appreciate in normal terms is what they would ask for, but this one twists the Part 36 offer.

The clause in the P36 is this:
"
Our client agrees to write off the balance owing in respect of the further advance agreement dated 24 October 2003. The amount required to redeem this part of the account would be Łxxxxxxx as at 30 September 2008"

I raised, during 11 months since this action started, many other areas of concern I which came up whilst I was researching my defence that had arisen within the running of this mortgage account with further advances and other transactions, each of which they have ignored in total. In the end they fell back to a base position which ONLY related to the counterclaim I had made as described in blue above.

The Tomlin Order came with this clause:

"The Parties agree that the consideration set out above shall be in full and final settlement of the Defence dated 12 November 2007 (which was my counterclaim) and of all claims between the above parties arising out of or in connection with the facts and matters in dispute in the proceedings whether or not such claims were expressly set out in the proceedings and whether or not such claims are known to, have been notified to, or are in the present contemplation of the above parties"

I wrote back saying I'd agree to the first part (in red) or, if they now wanted to address all the other issues I raised which they had chosen to ignore totally (which are quite substantial) then they can pay me accordingly as a full and final to compensate or remove the remainder of clause. They are totally refusing.

I say, they are trying to have their cake and eat it, they are in the wrong and believe me, they would not have offered me what they did if they were in the right as it is a lot of money to be wiped off the mtg and banks do not give money away easily, so they either want these issues addressed and compensate accordingly or they don't, if they don't they can't restrict my right to raise them in the future by putting in this restrictive clause which does not in any way reflect my counterclaim mentioned above.

According to CPR 36.3 (6) it states that " After expiry of the relevant period and provided that the offeree has not previously served notice of acceptance, the offeror may withdraw the offer or change its terms to be less advantageous to the offeree without the permission of the court."

I just want to know if they can add clauses within a Tomlin Order which differs from the Part 36 we accepted.

[Guest]

Re: Part 36 offer

In short, no.

[andrew1]

Re: Part 36 offer

In short, no.

I'm not noted for my short posts, but I was going to end the last one with a ' in a nutshell, yes or no !

Well done Cetelco, hole in one!

Thank you.

A1

[righty]

'The order is NOT the one you agreed to & it's clear they boobed & are now trying to correct their oversight by bullying you

It's up to you but you could write back & reject it on those grounds stating that if they refuse to amend it accordingly you WILL reserve the right to produce the evidence of their bad faith to the court

[andrew1]

Re: Part 36 offer

'The order is NOT the one you agreed to & it's clear they boobed & are now trying to correct their oversight by bullying you

It's up to you but you could write back & reject it on those grounds stating that if they refuse to amend it accordingly you WILL reserve the right to produce the evidence of their bad faith to the court

I have just done that, the part 36 we accepted and I am not backing out of that, but I will not accept the conditions and told them they are not allowed to change the Part 36 to put us in a disadvantaged position as a result of them... it's gone, we wait... Thanks everyone, I'll let you know what happens.

[andrew1]

Re: Part 36 offer

I've got a bit of a strange one on this now. The Part 36, offered to settle my counterclaim has been accepted by me verbally (although acknowledged in emails as being accepted) , and the conditions in the Tomlin which came 7 weeks later did not reflect what was offered and actually puts us in a position weaker than the Part 36. Monetarily we accepted the figure offered, but during the year we spent going back and forth and investigating our account we came up with a whole load of other transactions and misdemeanors which we wanted answers on. The bank ignored all of them and eventually reflected in their Part36 that they were settling against our original counterclaim of this further advance back in 2003. Okay, that's fine thank you very much, but, when the Tomlin conditions came through they included a clause wanting to stop us from not just things we raised in correspondence regarding these other items, but anything not mentioned or even thought about within our mortgage and I said " If you want to now recognise all these things you've chosen to ignore for the past year, make an offer and I'll sign the Tomlin Order as is" otherwise remove the conditions other than in full and final settlement of the original counter-claim"

The bank refuse to pay any further amounts, refuse to remove the clause, and refuse to answer any points I raised in relation to the compromised Part 36/Tomlin. I have a 10-15 minute Case management hearing booked for 2nd Jan which the solicitor wants to increase to 2 hrs and they have just written stating that the banks position remains the same and they will seek to 'Strike Out' my defence - Now I won't bore you with all the details of my claim, but I do not think the bank have a hope in hell of winning this case with the evidence I have against them if it went to full trial, but can anyone tell me what a Judge might say to an Application to Strike a case out when a Part 36 Offer has been accepted, for a substantial amount of money I might add (they just don't offer this kind of money when they are even 25% right) when the only stumbling block is this all encompassing clause? Can they actually do that? It has been suggested I request a Stay as their Claim against me and the P36/ Tomlin Conditions have been compromised?

and...finally, what is likely to happen at a case management hearing, can I tell the judge I've accepted their P36 Offer - I know we are not supposed to tell the judge a part 36 offer detail, but can I say it's been accepted? I have to answer this today somehow and looking for as many angles as I can before I reply.

Thank you and a happy Christmas to one and all :santa3:

[andrew1]

Re: Part 36 offer

Hi, Can anyone tell me the position with this:

I have a case management hearing tomorrow in a long running case.

We have negotiated for over 9 months and the bank made a part 36 offer which I accepted. When the Tomlin Order was sent 7 weeks later the conditions within it did not reflect the Part 36 Offer and I wouldn't sign it. Whilst there was no requirement to sign it in the Part 36 and the offer and acceptence has been acknowledged on both sides the bank are now reneging and putting up a new defence to my original counter claim and have submitted an Application for a strike out of part of my original defence of their repossession claim.

Now having already made a substantial Offer and accepting this offer a couple of months back I am asking myself how on earth they can go back now and do this. Tomorrow at the Case Management hearing all I should be able to do is go in and say to the Judge " A part 36 Offer has been made and I accepted that, will the court enforce it" but I'm aware that normally as this is a "Without Prejudice save as to costs" Offer I am not allowed to use the detail in court.

Can anyone tell me the difference between the case management hearing and an ordinary hearing and how much I can actually talk about this Part 36 Offer and acceptance? Can I mention the Offer but not the figures or what? Thanks.

[righty]

Re: Part 36 offer

The CMC is for the court to decide what comes next. Anything you wish to mention mention the terms have been altered arbitrarily by the otherside & don't quote the figures

[andrew1]

Re: Part 36 offer

So, just to clarify, I can go in and state that an offer has been made and accepted, but keep all figures out of the equation. Mention that the claim has been compromised by the Tomlin conditions, but again keep stum.

Interestingly, I've been searching for an answer all day and one of my Cabot Fan Club chums has just, since posting this question, beamed me over this from a firm of solicitors website which also opens up my ability to discuss. I'll post it because it may be useful to others too:

"Without prejudice communications can be in the
form of letters, emails, telephone discussions and
meetings. They can be brought to the Court’s
attention to explain delay and, where an offer
made in a without prejudice communication has
been accepted by the other party to the dispute,
the act of acceptance can create a legally binding
contract, upon which the trail of without prejudice
communications becomes “open” and can be
entered as evidence to enforce a party’s rights"

Now that, is just the icing on the cake!

Thank you one and all and a happy and prosperous New Year... I don't come on here often, but a big thank you.

[andrew1]

Re: Part 36 offer

Okay, update.

The case management hearing focussed around the Part 36 Offer and Acceptance and the Judge decided that before things could progress he had to assure himself that I had actually accepted the Offer - he was aware that the Offer needed written acceptance so he rescheduled the hearing for later in Feb and that hearing to be ONLY about the Part 36 and the Acceptance. He wants both sides to provide all supporting information surrounding that event. If I win, that's it, If I lose then the case will be referred to another court to continue with the repo action and my counterclaim over their agreement.

Today I received a letter from the banks solicitors withdrawing their Part 36 offer stating:

"Our client formally withdraws the Part 36 Offer set out in our letter of 18 September 2008 and the Tomlin Order forwarded on 5 November 2008.
As the offer has been withdrawn after the expiry of the 21 day period, the Court’s permission is not required for our client to withdraw its offer."

Yours faithfully


So it looks as though with this hearing, if I win the letter above is meaningless, if I lose then they pursue their claim and their offer gone...

It gets dirtier by the day, I never believed after all the years I have been in business and done things totally by the book, in good faith and often on handshakes, that there could be an industry which is so bereft of morals and integrity... the quicker this is finished the better...


.....as a matter of interest, whilst I feel I have enough written support to confirm my acceptance was bona fide has anyone any contract law experience which supports the verbal agreement argument I can give added back-up to on this? I also verbally accepted this Part 36 Offer, within the prescribed term to the banks solicitor. Verbal contracts have a standing in law don't they? - Anyone know of cases or something I could use also? PM me if you wish to keep it private..

Thanks

[Guest]

Re: Part 36 offer

If you have written confirmation that you accepted their offer, that is going to trump any claim of there being an oral contract. (A pedantic point, but all contracts are verbal, from the Latin "verbum" meaning "words" whether written or spoken. A contract that is not in written form therefore is oral.)

For a valid contract to exist between you it must be shown that there has been an offer and that the offer has been accepted. In addition there must be an intention from both parties to create legal relations and consideration. Consideration has to have some value, however slight and can consist of a promise. (Thomas v Thomas 1842.) Also, from Dunlop v Selfridge Ltd [1915] "An act or forebearance of one party, or the promise thereof, is the price for which the promise of the other is bought and the promise thus given for value is enforceable."

Oral contracts are just as binding as written ones, but less easy to prove.