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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10395
Experience:  I have been practising for 30 years.
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I have a tenant who has injured themselves in one of my

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I have a tenant who has injured themselves in one of my properties. I need advice on making them a 'WITHOUT PREJUDICE" offer to settle, as I have no insurance

Has the claimant instructed solicitors?

Is it your fault?

Have you admitted liability?

How much are they claiming and in respect of what injury?

If we could have as much background detail as possible please it would help us. Thank you

Customer: replied 1 year ago.
No the claimant hasn't instructed solicitors.
It happened yesterday. One stair on the stair case was lose. Tenant told me about it a couple of months ago but didn't want it fixing at that point. I have then forgotton to fix it. as it has not been mentioned again.I have not admitted liability.
The tenant yesterday put their foot through it and has now a slipped disc and cannot pay the rent. I would prefer to offer a couple of months free rent without admitting any liability. To head this off.
I had a builder fix the staircase the same day. He stated to my that it looked like it had been jumped on and was not accidental.

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?

Please don’t forget to rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.

Customer: replied 1 year ago.
Thanks, ***** *****'t any funds to offer them a cheque, so can I make the offer of 3 months three rent and have them sign it stating within the letter "they are accepting the offer of three months free rent in full and final settlement of all claims past present and future in respect of this accident" ?If so, can I get you write the letter ?

Yes, I can write the letter for you. It is an extra service for which there is an extra cost. I will submit it as premium Service proposal for you. You can accept that or not you wish.

I would not be able to do it tonight would be able to do it tomorrow. You would need to fill the gaps in the letter such as the date on the nature of the incident.

I will put the legalities in for you make it quite a firm letter but it’s up to you whether you want to take some of the “firmness” out and make it softer.

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks, ***** ***** firm, I want o keep it civil, as long as it covers me. Please let me know what happens next. Thanks.

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