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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I am a claimant (& have a case open in the County Court but

Customer Question

I am a claimant (& have a case open in the County Court but have not had the final hearing yet just a directions hearing) where the defendant has sent me a part 36 offer of settlement via her solicitor The solicitors letter was dated 13/4/15 & I got it on 15/4/15 I was given 21 days to accept the offer of £1000 which I did & my letter of acceptance was sent to her solicitor on 24/4/15 requesting settlement amount be forwarded to me within 14 days. However because I had not heard anything I emailed solicitor on 7/5/15 requesting acknowledgement of my letter of 24/4/15 & reason for the delay in respponding I received a reply stating that the delay was due to the client not returning the signed consent order but once received would be sent onto me to sign On the 14/5/15 as I hadn't got the consent form or any other reply I emailed solicitor again asking for present position as 14 day timescale had now expired I got a reply from solicitor on 18/5/15 advising that a signed order would be with me before the end of Tues 19/5/15 I didn't get the form so I emailed the solicitor again on 20/5/15 stating it is now 27 days since the date of my acceptance of the part 36 offer & that her client was now in breach of the terms of this offer & unless the consent order is not in my possession by Tues 26th May I will be taking further action by issuing an application to Court to enter Judgement with a request that all costs be obtained from client Can you please advise what I should do next if I don't hear anything by 26/5/15 I rang the Court but got a few conflicting answers .
Should I issue form N244 & if so can you confirm the amount of the fee I should send with it .
Also is there a form I should send to the Court to set aside the proceedings for the original claim as a part 36 offer has now been accepted and a final hearing will not now be required according to the rules of Part36 offers & is there a fee for this ?
Am I right in thinking that as I have accepted her offer now over 28 days ago that she cannot withdraw this offer?
Thankyou
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I ask, leaving aside the p36 offer how matters have been left with the court following the directions hearing please? Has the matter been listed for trial or has the matter been adjourned pending the outcome of your negotiated settlement?
Customer: replied 1 year ago.

The Court is not yet aware of this part 36 offer & that is why I wanted to know whether I should advise them The matter has been listed for trial between 17th Aug-7 Sept Once I had received her payment I was then going to tell the court that the trial would not be needed

Expert:  Joshua replied 1 year ago.
Thank you for the clarification - that is very helpful. As you will know a p36 offer is an device that a defendant can use to settle the matter out of court and operates on the basis that if you as a claimant refused the offer and then subsequently fail to do better in court then even if you are otherwise successful, you will not be able to claim costs against the defendant. The court does not need to be made aware of the part 36 offer and it is inappropriate to advise the court and should you do so the court will not admit the advice because the p36 offer cannot be admitted as evidence until after a judgement has been made. The point at which it can be admitted is after judgement but before costs by the defendant if the judgment is for less than the p36 offer - if this is the case the defendant will produce the offer so as to ask the judge not to award costs against the defendant.in this case, from what you say, the defendant has failed to comply with the terms of the offer and therefore you are entitled to reject the offer without penalty for costs described above. In other words, if you are successful in court that failed to obtain a higher judgement than that offered in the part 36 offer, because the defendant did not comply with the terms of the offer, you would not be penalised for costs.Accordingly, your options at this stage are either to reject the offer on the basis the defendant has failed to comply with the terms, or extend the offer period to any point prior to the scheduled hearing of your choice. You do not need to notify the court unless the offer is accepted. If the offer is accepted, the solicitor will ask you to sign the consent order she refers to. The effect of the consent order is to settle the matter on the terms contained within the order and then the order will be sent to the court for sealing whereupon it becomes a binding judgement and the hearing will be vacated. Ensure if you accept the offer that the consent order contains all the money including any costs you wish to claim as you cannot appeal the order once signed and sealed if you are not happy with it.unless the consent order is signed by you in acceptance, the hearing will take place as planned and the p36 offer under these circumstances will not be relevant nor discussed with the judge.I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Customer: replied 1 year ago.

Am I right in thinking then that because I haven't actually had the consent order & therefore not signed it the defendant as a right to withdraw her part 36 offer & continue with the original proceedings?

If the reason for the delay in sending the consent form to me is because defendant is in process of withdrawing her offer if her solicitor has been aware of this I have been misled for the last 28 days!

My next action was to issue n244 to get judgement against defendant for non pyt is this too premature then?

Expert:  Joshua replied 1 year ago.
Thanks for the above. If you have accepted the offer in writing and can evidence both the offer and your acceptance then under CPR rule 36.14(6) you can ener judgment against the defendant for the offer. You can do this without notice by writing to the court enclosing the above evidence and stating that you have not received payment (you have corredpondence of the solicitor confirming as much) and ask the court to enter judgement agaisnt the defendant unde CPR rule 36.14(6). The court will issues a judgement and you can then contact the defedants solicitor and require payment within the timescale specified on the judgement failing which you can commence enforcement action if necessary to recover the monies.I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.
Expert:  Joshua replied 1 year ago.
Have I been able to help you with all your questions on the above?
Customer: replied 1 year ago.

Not sure if you got my last reply but wanted to know if there was any circumstances where the defendant could be given permission by the court to withdraw this part 36 offer (when I accepted it before the 14 day timescale) & recommence with the original proceedings. I have been in constant contact with her solicitor who assured me a consent order form was on its way to me !

If I apply to court for judgement for non pyt of her offer which form should I send how much is the Court fee I need to send with it?

Expert:  Joshua replied 1 year ago.
I'm very sorry - no I didn't. I apologise for the inconvenience. Unless the defendant made the offer subject to one or more conditions which it could show were not fulfilled which is not the case here from what you say then the defendant cannot withdraw the offer if you choose to enforce it by entering judgemnt as above. If you choose to apply for judgement you can apply without notice - judgment can be requested as above by writing to the court and asking the court to enter judgment on the basis you ave not received payment within 14 days of the accepted p36 offer. No form is required nor fee. You should enclose evidence of the offer and evidence it was accepted in writing by you and that it has not yet been paid.Have I been able to answer all your questions on the above?
Customer: replied 1 year ago.

yes you have been very helpful

if I require any more questions answering tin the next few days I am right in thinking I can just come back on this site & do so ?

Expert:  Joshua replied 1 year ago.
Yes certainly. If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today. Your feedback is important to me. This will also save the thread to your account and you are welcome to return to it if you have any further follow up questions. Best wishes
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Law Specialists are ready to help you
Customer: replied 1 year ago.

In circumstances whereby the defendant applied to the Court to withdraw her part 36 offer before I accepted it is there a possibility that the Courts consent would be given to the defendant that the offer can be withdrawn?

What would happen in circumstances whereby on the same day I accepted her offer & she put an application in to court to withdraw the offer (or she put application in to withdraw 1 day before I accepted it?)

How would this be dealt with by Court?

Expert:  Joshua replied 1 year ago.
Is this what has happened or are these hypotheticals please?
Customer: replied 1 year ago.

well before I spoke to you today I rang the court just to check what form & fee to send to get judgement for her non payment of pt 36 offer but when I rang the clerk she thought I was the defendant & before I got chance to say anything said my application I had sent in had been dealt with on 20/5/15 but had been returned yesterday because the wrong fee had been paid ie £150 instead of £155 When she realised I wasn't the defendant wouldn't tell me what the application was for but I am wondering if it was a withdrawal request or revision to the offer I am wondering this because she has not been sending back the consent order to me & it appears she probably hasn't advised her solicitor the reason why she was delaying this matter The solicitor has replied to me numerous times saying her client will send the consent order to me but never has!!

The reason could be that a survey was done on her property on 13/4/15 which was the same day as I received her offer but when the surveyors report was emailed to us both on 22/4/15 because of the complexity of the case she had one or two points in her favour (which I could explain the reason for in Court) but because she made me this offer I didn't get back to the surveyor with my reasons for these small points because I thought everything was settled with getting the offer & so would just have been a waste of time & money!It was written in our orig court order that if we had any questions on the survey to get them to surveyor by 8/5/15! When she got survey with couple of things in her favour she may have thought it worth now withdrawing or revising the offer! I accepted the offer on 24/4/15 so she could only have replied either on 23rd or 24th (I suppose she could have replied on 22nd but we didn't get the email until quite late on the 22nd)

Expert:  Joshua replied 1 year ago.
The only obvious thing I can think of would be a counterclaim but that does not fit with the fee payable because the £155 fee is a application on notice fee which is not what would be payable under a counterclaim as the fee is based on the amount amount claimed and that fee doesn't fit. After that we are into conjecture but they could be disputing the courts jurisdiction if the matter is cross border.A part 36 offer can be withdrawn by the offeror at any time before the offer is accepted by notice served on the offeree (you). It cannot be withdrawn once already accepted.In the circumstances there is nothing preventing you requesting judgement based on the above if youc an show you have accepted the offer. At the same time you may consider contacting the solicitor and asking her for some clarification reminding her of her duty under the solicitorc conduct code to treat you fairly as an unrepresented litigant.
Customer: replied 1 year ago.

The second paragraph is a bit confusing to me. Can you please clarify a part 36 offer can be withdrawn by her at any time prior to me submitting my acceptance in writing or the date of the letter(13/4/15) that the solicitor advised of the part 36 offer?

The defendant resides in uk but is of Irish origin so could this effect the jurisdiction of the court.

In respect of clarification from the solicitor should I therefore ask out right what this application her client submitted is for and remind her she is duty bound under solicitors code of conduct etc

Am I right in thinking then that this £155 fee does not fit in with an application to withdraw/ amend an offer made by the defendant?

Sorry to be a nuisance!!!

Customer: replied 1 year ago.

Are you able to reply yet to my message at 13-55 (your time) yesterday

Thanks

Customer: replied 1 year ago.

Sorry to bother you again (im not sure what the procedure is if you haven't answered my last question whether I can send another!) Any way I hoped you would be able to deal with both together if I sent hopefully this last question.

If the defendant has applied to withdraw her application ex -parte without serving me notice of her intention to withdraw(as in CPR pt36.9) & the Judge decided in her favour that she can withdraw would I be allowed to appeal based on the facts that I have been completely misled into believing that settlement was to be made & all I was waiting for was the signed consent order from the defendant (via her solicitor)

In light of me being misled to believe that a settlement was imminent I have not supplied questions to the surveyor which I was entitled to do by the 8/5/15 (as per the Court Order)

If I did go for appeal obviously I would wish to set aside ongoing proceedings until the appeal is dealt with.

Please can you advise how I would apply to appeal & set aside proceedings (is there a specific form?) & what are the Court fees for doing this ?

Thankyou again & fingers crossed this will be all my questions answered

Expert:  Joshua replied 1 year ago.
Sorry for the delay in reverting to you. We ar independent lawyers and so are generally available less outside of office hours.
If you have accepted the p36 offer then it can only subsequently be withdrawn after that with permission from the court under rule 36.10. You would be entitled to have notice of the application should they do so. I would question whether this would be wothwhile for an offer of £1000. The solicitors and fees and court fees would surely make such an application uneconomical.
I cannot see there is anything to appeal at present as not judgement has been given. To make an appeal however you would use this form:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n164-eng.pdf

In my view the approach to consider is to make a request for judgement as discussed above on the basis of the accepted offer and at the same time contact the solicitor for an explanation as above.
Customer: replied 1 year ago.

thankyou so much your help has been excellent

Expert:  Joshua replied 1 year ago.
Glad to have been of assistance. Enjoy the bank holiday weekend. Best wishes

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