Without prejudice problems

[Itsmeagain]

Hi

We are a very small company making a claim which will almost certainly be dealt with through the Small Claims court but has not yet been allocated and we are representing ourselves.

The background: Fifteen months ago we hired some temporary drivers for several days and, due to what we regard as completely reckless behaviour, one of them demolished a large automatic metal gate at the entrance to our yard and badly damaged the vehicle he was driving too.

We obviously wish to recover the cost of the repairs totalling £4900, from the agency who supplied this driver and so sent several letters and emails to the agency in an attempt to resolve the issue. Much of the later correspondence was headed 'Without prejudice' and on occasion we attached copies of an earlier email and a time sheet to support a point we were making. These attachments were NOT themselves marked 'without prejudice'. This period of correspondence ended with our claim being passed to their solicitors when there was an offer to waive the invoices totalling £990 they had submitted to us for payment of their services . We rejected this offer as we felt it was derisory.

At this point we issued a letter before action which was *not* headed without prejudice and as we had no response to this letter we issued proceedings to recover our losses.

After the solicitors recieved our claim and particulars of claim but before entering their defence to it they contacted us with a view to settling the claim 'on a commercial' basis but said if we could not achieve an agreement within 14 days then they would ask the court to strike out our claim. We responded by saying that we were happy to attempt to settle but not with the threat hanging over us to which they duly reduced the limit to 7 days on the basis we were being unreasonable. Nothing was resolved and they have indeed asked the court to strike out our claim as a few days ago we received a 'Notice of Hearing of Application' set for 3 June 19. Attached to it is a witness statement and a form n244 and in section 3 they state that, amongst other things which we understand and can comply with, the defendant requests that, 'An order that the claimant removes all references to Without Prejudice communications that are included in the Particulars of Claim, to include the annexes to the claim.' In the witness statement they ask that if the claim must proceed to a hearing that an order be made that we amend our POC to, 'remove all references to and copies of WP correspondence as WP correspondence are genuine attempts to settle a disagreement and should not have been referred to or disclosed.'

Now I understand that normally WP letters cannot be shown to the court but that is based on there being a dispute and that the series of WP letters must contain a *genuine attempt to settle*.

My first question is: Would the initial request by us for payment in full and their paltry offer constitute a *genuine* attempt to settle? If it appears not, then how do I counter the order to remove all references to WP correspondence?

Secondly : If I must remove the WP correspondence itself do the attachments that were included within the WP correspondence also have to be removed as they were not themselves marked as WP? The use of these attachments is more important to me than the WP letter itself.

Thirdly: Does the break of several months between the letter before action and their contacting us to try and settle have to be included as being in the same series of unbroken WP correspondence or does the open 'letter before action' serve as a break in the series?

I look forward to and thank you for any advice someone might be able to give me on this.

[jaguarsuk]

In answer to your questions:

1. Yes, they will say it was and that despite your differing opinion they were trying to settle.

2. Yes if they are referred to in the letters marked WP it extends to the attachments.

3. If they did not head the response to the LBA with WP then it should be admissible.

You say that the emails are more important than the letters, so you only need to submit them as evidence and evidence shouldn't be submitted with the claim form any way.

Now, if it were me in response to this application I would propose a consent order with the defendants to removes all references to Without Prejudice communications that are included in the Particulars of Claim including the annexes to the claim, vacate the hearing of 3rd June 2019, claimant to file and serve on all other parties amended Particulars of Claim 14 days from the date of the order or else the claim stand struck out, defendant to file and serve on all other parties a defence 28 days from the date of the order or else the claim stand struck out and parties bear their own costs.

They may refuse the consent order on the grounds of bearing their own costs as it's cost them £255 to make the application and you may have to agree to pay them £255 costs in the consent order to get it over the line.

Later when you submit a Witness Statement prior to the hearing you begin it with the fact you emailed them about the issue and introduce those emails as exhibits of your Witness Statement.

The reason I say to try to do ii by consent is that the judge will likely award them the order in June and they'll claim costs in that instance, which their solicitor will be adding attendance fees etc. on top of the £255. It is your most cost efficient way of dealing with this application and getting on with the claim.

[wales01man]

May I ask why this is not an insurance claim ?

[Itsmeagain]

May I ask why this is not an insurance claim ?

Because we are already loaded 50% due to claims experience and if this accident is added to it the loading will increase even more at next renewal making a claim under our insurance policy more expensive by virtue of the extra premium we would have to pay.

[des8]

Hmm, but don't forget the incident will still have to be declared to insurers at renewal and so you could still see your premiums increase

[Itsmeagain]

Hmm, but don't forget the incident will still have to be declared to insurers at renewal and so you could still see your premiums increase

Thanks for the advice. The insurers are aware.