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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71053
Experience:  Over 5 years in practice
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We are claimants (LIP) in a multi-track claim and we are at

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We are claimants (LIP) in a multi-track claim and we are at disclosure stage. The builder was the originator of the claim but we only received two letters from his solicitor before he parted company with them. Our lengthy response to the first letter was never addressed; the second letter was ‘was without prejudice to save costs’ but then went onto advising it was a Part 36 Offer. We turned it down giving our reasons. We were advised a month later by the solicitor that they were no longer under instruction. We are no time received a letter before claim.
Now that we are the claimants can we disclose the ‘without prejudice save as to costs’ letter? We know that a Part 36 offer cannot be brought to the courts attention but at the time a court claim was never made. We refused the offer on the grounds of the conditions and we see them as important evidence in our case. From our own research we understand Part 36 offers can be used as a tactical move.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Why do you want to disclose the Without Prejudice letter and who to?
Customer: replied 3 years ago.

As per the directions given by the Judge at a CMC (Disclosure of documents) . The contents of the letter and response pertains to our claim, the builders negligence and conduct in getting the dispute resolved


You cannot disclose the correspondence to the court if it is marked without prejudice regardless of whether proceedings had already been started or not.

Even if it is not marked "without prejudice" you cannot disclose it if it contains any kind of offer to settle either before issuing proceedings or during the course of those proceedings.

However there is no reason why you cannot disclose it to any new solicitors now acting for the builder

Can I clarify anything for you?


Customer: replied 3 years ago.

Dear jo

Thank you for the info. The builders solicitor already has it but it is so unfair when the civil litigation handbook and others say it is used as a tatical move. Thank you anyway

A part 36 offer is a tactical move because it means that if you eventually go to court and you do not get awarded the order was in the part 36 offer, you pay all the legal costs from the date of the offer including the cost of the trial.

The part 36 offer is disclosed for the purpose of awarding costs to one party or the other.

For that reason, it is wise to take a part 36 offer quite seriously
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