Part 36 offer

[andrew1]

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.

Thank you Cetelco,

I wish the written acceptance had more straight forward. What happened was that the Solicitors wrote in hard copy a Part 36 Offer which had followed some tense negotiations by email. I had 21 days in which to accept the Offer which was not what I had wanted, but I felt having exhausted all else decided to accept so I accepted by telephoning the Solicitor for the bank. I asked what happened thereafter and she said she would write to me as I had also asked for the figures in the Part 36 to be quantified as there had been differences in the figures for the remaining mortgage balance, so I waited. There was also a hearing due and she had been liaising with the court each and every time (this had been going on for a year nearly) A week went by and I was concerned that we should advise the court of the decision and emailed her to ask what was happening and shouldn't I be doing something, she said no, she was awaiting instructions from her client and I need do nothing. Another week went by and still nothing so I emailed again asking, again I was told to do nothing, she apologised for the delay but was awaiting instruction. After 3 weeks since I had accepted I received the Tomlin Order and it differed from the written Part 36 Offer to a degree which meant we would be worse off so I complained and said I wasn't signing it unless they compensated for the difference. (I had raised many issues during the year which they ignored and refused to debate over and above my original counterclaim, the Part 36 addressed the counterclaim only aand stated it was in full and final settlement of that counterclaim and it was that I accepted) The Tomlin Order said we could not raise any other issues even if we had 'thought' about them and I said if they wished to now include those in the Offer having ignored them for a year then they need to provide compensation for that and I gave them a figure - they refused. They then decided after a whole year to get a barrister to look at my initial counterclaim and brought him to the court for the case management hearing to ridicule my claim and they argued I had not accepted the Part 36 Offer.

My argument is that they compromised the Part 36 Offer with their Tomlin conditions which arrived 3 weeks after the acceptance of it and 7 weeks after the original Part 36 Offer was made. I could not have known about the conditions at the time the offer was made or when I accepted other than what was in the Offer. I also have evidence that the solicitor had told me I need do nothing so the Judge demanded the next hearing be to establish whether my acceptance of Part 36 was made and bona fide.

This answer you have given cetelco will only strengthen my case for it being accepted in honour and deed and I thank you. any further thoughts on an approach will be welcomed. I am a LIP and have no representation as I do not have the funds to do so. The claim was a repossession and if I lose this then repo will follow, my counterclaim was against that and relating to a further advance in 2003 which I said was wrongly executed.

A1

[righty]

Re: Part 36 offer

If you have a written offer which differs from the Tomlin Order then the offer has been amended WITHOUT your agreement & is invalidated.

Are they saying you accepted their amendments which diminish your position by phone? If not I'm at a loss to understand why the court doesn't accept your position. Common sense dictates that you would be a complete eejit to accept a lower offer when a binding one had already been offered & accepted.

[righty]

Re: Part 36 offer

In addition it would be interesting to ask the solicitors if it is their practice to prepare a Tomlin Order (even an amended one & which reduces your award as per the pt36) BEFORE reaching agreement with the other party (you)

As I have stated it makes no sense whatsoever that you would agree an offer then negotiate it downwards & if that's what's happening between the pt36 & the order I can't see why the court are in any doubt
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Also I should not accept their withdrawal of the pt36 & TO as it's a clear attempt to circumvent any adverse decision by the court & in my view an abuse of process.

The matter of the pt36 & the TO are now before the court & it's for the court to decide not them. I should respond by telling them just that & that you refuse to accept their recant of the offer

[andrew1]

Re: Part 36 offer

If you have a written offer which differs from the Tomlin Order then the offer has been amended WITHOUT your agreement & is invalidated.

Are they saying you accepted their amendments which diminish your position by phone? If not I'm at a loss to understand why the court doesn't accept your position. Common sense dictates that you would be a complete eejit to accept a lower offer when a binding one had already been offered & accepted.

No, they are not saying I accepted their amendments, that's the trouble, they provided a P36 which said " in full and final settlement of your claimed dated Nov 2007" which was my initial counterclaim. During the year that followed, as we had so much documentation and research of the mortgage from the beginning (1989) I began raising other issues relating to the Further Advance in 2003 and the mortgage as a whole as there had been other further advances which we found had breached rules and regulations. The one in 2003 was the focus of our counterclaim and the only one mentioned in our claim. I had also obtained their Lending Policy Document in force at the time which demonstrated how utterly blatant they were in breaching their own rules of lending criteria when they provided the loan.


Each and every point we raised they ignored and they wouldn't get into any discussions about addressing or compensating us for. When the Tomlin came in they had a clause which, unlike the P36 full and final on the 2003 F/Adv stated that we could not raise any of these other items or any future ones even if we hadn't yet thought of them which compromised the Full and Final settlement in that it went beyond the full and final offered in respect of the 2003 F/Adv and what I had accepted.

I said I accepted their P36 offer as it stood and still do, I will sign the Tomlin conditions and accept all that goes with that if they cared to compensate us as requested previously for all these other issues - they refused and I said they can't have it both ways, ignoring everything else all that time, but now wishing to include it in the Tomlin. I accepted what was in the Part 36, could not have known about the Tomlin Conditions because they came 3 weeks after acceptance was made and whilst I can understand fully that this settlement needs to and usually concludes all else so the future in unincumbered by additional litigation I was not prepared to sign something which compromised the Part 36. (There were other things which compromised the situation which I won't bore you with) but, generally the Tomlin and the Part 36 were totally different.

The Judge now wants us to prove our acceptance was bona fide and the Part 36 was effectively accepted...I have paper truth, I just needed the additional arguments and case-law to back up any shennanigans they get up to in their presentation to the Judge.
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In addition it would be interesting to ask the solicitors if it is their practice to prepare a Tomlin Order (even an amended one & which reduces your award as per the pt36) BEFORE reaching agreement with the other party (you)

The actual amount hadn't been reduced, it was the conditions which were applied which had changed.

As I have stated it makes no sense whatsoever that you would agree an offer then negotiate it downwards & if that's what's happening between the pt36 & the order I can't see why the court are in any doubt
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Also I should not accept their withdrawal of the pt36 & TO as it's a clear attempt to circumvent any adverse decision by the court & in my view an abuse of process.

Can I do that? refuse their withdrawal and what benefit will that raise? If the Offer is deemed accepted in this next hearing then I presume it will be just enforced by the court and we move on with the amount reduced from my mtg as stated in the P36. If I lose then the judge said the case will be moved onto the main defence of the counterclaim at another court as he will not be impartial anymore having been involved in the P36 issues. The bank will then continue with their repossession claim once my counterclaim has been decided if I lose, or my counterclaim will be upheld if I win and more or less the same sum will be deemed written off as in my P36 as it's much the same amount.

The matter of the pt36 & the TO are now before the court & it's for the court to decide not them. I should respond by telling them just that & that you refuse to accept their recant of the offer

Is this normal practice? they wrote in their letter that because the 21 days has now lapsed they did not require the courts permission to withdraw.

Thanks

[righty]

Re: Part 36 offer

Under normal circumstances yes they could withdraw after 21 days but their pt 36 & TO & their validity are the very essence of the arguments now before the court & IMHO it's an abuse of process to try & circumvent the judgment of the court.

You as say you have proof, whether by email or otherwise, that you accepted their original offer which they then arbitrarily changed. That being the case nor the pt36 offer or the TO are any longer 'without prejudice' & can be discussed in open court

[andrew1]

Re: Part 36 offer

Rightly, I really appreciate this. I have to put together a letter then and I'm not usually short of a word or two in that department, but....how would I word something like this?

[righty]

Re: Part 36 offer

Just keep it simple "as this matter is now before the courts for a finding I do not accept your right to withdraw the offer. Furthermore I consider that for you to do so at this stage to be an attempt by you to abuse the process" & let them stew on that:tinysmile_grin_t:

Also send a copy of both their & your response letter to the court telling them you have done so

[andrew1]

Re: Part 36 offer

Just an update guys and gals, and I am really sorry for omitting you all here from the result I posted elsewhere. Following the year and a half of negotiation batting back and forth the bank and I agreed a settlement which we both agreed to. This put the final touches to a very long haul and whilst I am subject to a confidentiality clause and CANNOT divulge to anyone what the result was, I can say that it has been settled to everyones satisfaction.

Can I just thank all those who helped me through this jungle - challenging the banks, taking them on and finding a settlement is possible if you keep at it, it can be daunting and it certainly can be hard work. My O/H has taken one hell of a roller coaster on this as I've been the one running the show on this and it's been a bit of a blind alley for everyone else not involved, but I am extremely pleased with the outcome and the closure. It hasn't put cash in my pocket in the short term, but in the long term this settlement has made life easier.

Thank you - all of you.