Thank you. If the claimant had already been to solicitors, then I would suggest that you make an offer under Part 36 of the Civil Procedure Rules. I will explain how that works for your future information but then read my comments at the end.
Then, if the matter proceeds to court and the Claimant fails to get paid more than you have already offered, the court will make them pay all the court costs and solicitors costs including your costs, right from the date of the offer. It’s a very powerful incentive to accept.
Here are a couple of articles on part 36 offers.
as well as having the criteria noted in the articles, make sure that you had the document “Without Prejudice Save as to Costs” because then, it cannot be produced in court is any evidence of an admission that you are at fault or that you would have settled for any amount already.
Any Part 36 offer is subject to solicitors costs which are generally “to be assessed if not agreed”. Assessment is basically putting the costs claimed by the solicitor in front of a judge and the judge will strike out anything he doesn’t agree with all things is unreasonable.
As solicitors have not been instructed, I suggest that you don’t just make an offer but let them have a cheque and in the letter accompanying the cheque you tell them that if they can the cheque, they are accepting the letter in full and final settlement of all claims past present and future in respect of this accident and that if they do not accept it as such, they should return the cheque to you.
If they cash the cheque, they are then going to be hard pressed to go to court and solicitors will generally not take it on. If you want belt and braces, you should tell them to take legal advice on the effect of the letter if they do not understand.
There is a potential defence for you here if the tenant told you about it but didn’t want it fixing and then slipped on it. They could at least be partly contributory negligence for telling you not to repair it although you are partly negligent for not insisting. It depends if you want the argument in court.
If you make them a without prejudice offer it’s very difficult to do that if all you are going to do is not collect rent from them. That’s why suggested letting them have a cheque which can be the equivalent of for example, three month rent.
If they go to solicitors with this, it’s likely to be worth several thousand pounds. You need to try to head this off and hence, the more attractive you make the amount, the more chance you have they will cash the cheque.
Can I clarify anything for you?
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