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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47366
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Our travel agents made numerous errors with our holiday to

Customer Question

Our travel agents made numerous errors with our holiday to Australia and spoilt our holiday.
They have admitted the errors and apologised - in the same 'open' email they made a derisory 'ex gratia' offer.
We want to apply for summary judgment partly relying on the above email. They claim it is inadmissible in evidence because of the words 'ex gratia' - is this correct law, please?
.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Was there mention of 'without prejudice' in the letter?
Customer: replied 1 year ago.
No no mention of without prejudice and no mention of a part 36 offer either. It was simply a reply to a very long letter of complaint
Customer: replied 1 year ago.
Sorry to trouble you but are you going to respond to the above answer to your perceptive question?
Expert:  Ben Jones replied 1 year ago.
Yes of course, but I do need to check a couple of things before I can rpely
Expert:  Ben Jones replied 1 year ago.
What the agent is trying to use is apply the ‘without prejudice rule’, which generally prevents statements made in a genuine attempt to settle an existing dispute from being put before the court as evidence of admissions. If a claim to WP privilege is challenged, the court will focus primarily on the substance of the disputed document to assess whether to uphold the claim to WP privilege. Failing to label a document WP will not preclude it from benefiting from WP privilege if it is a communication made in a genuine attempt to settle an existing dispute. So in your case the agent had not used the WP label but that does not mean they cannot rely on WP privilege to prevent you from using the letter. The use of ‘ex gratia’ does not make much difference and it is the contents of the letter that would be important. This is your basic legal position. I have more detailed advice for you in terms of the law on without prejudice correspondence and what a court would look at to establish if they should be protected, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
Ben,Thank you.I will be happy to leave a tip after one final point please!The ex gratia offer was derisory at mere £200 on a £16,000 holiday plus a £200 voucher if we used their services again!The customer relations manager very well knew that we would never use Travelbag again so I think this may help does it not?The tone of all his emails has been arrogant and dismissive. One major mistake was when we turned up at a hotel in Melbourne for a 4 night stay only to find that Travelbag had cancelled and forgotten to rebook - and this was in Chinese New Year when all the hotels were full. We lost nearly two days in trying to sort this out,Regards,John
Expert:  Ben Jones replied 1 year ago.
The value of the offer is not always relevant, but in this case you have to consider if they can argue that this was a WP letter and exclude it from court proceedings. It has to be a genuine attempt to try and settle an ongoing dispute. It cannot apply where the parties have merely asserted their case or criticised the other side's case. You could try and argue that such a derisory offer is not a genuine attempt to try and settle this and just an opportunistic attempt to get rid of you and stop the claim. In the end only a court can decide whether to allow this document so you can try and include it and let the agent challenge that by showing it is correspondence which meets the WP rules
Customer: replied 1 year ago.
Ben,Very many thanks indeed- how do I now leave a tip please?John
Expert:  Ben Jones replied 1 year ago.
I think there is a bonus option or similar on the page. I am sorry, I do not exactly know what you see on the customer's side, but thank you for trying even if it does not work
Customer: replied 1 year ago.
Ben - you are one bright cookie!I was a solicitor years ago and I would offer you a partnership any day of the week!,Thank you for very rapid help- far better than I could have ever done!John
Expert:  Ben Jones replied 1 year ago.
Thanks for the kind feedback, good to know the advice helps at times :)

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