Articles

Does making a settlement offer weaken your case? And a look at ‘Part 36’ Offers

By Lucy Penfold, solicitor at stevensdrake

Making settlement offers can be a tactical way of ‘getting what you want’. However, persuading someone to say yes, instead of no, can be tricky.

Everyone has participated in negotiations at some point in their life, some more than others. This could vary from persuading your children to eat their vegetables and as a ‘reward’ they can have pudding, or negotiating a pay rise at work and in return you’ll increase your target for the next year.

Whatever the dispute, each person has their own side and opinion, and each will have to make a compromise to reach a middle ground. Perhaps you reach an agreement, perhaps you don’t.

How to settle it will depend on the type of dispute. For example, a big family disagreement might benefit from engaging in mediation, as one party may just be looking for a simple apology. This method however may not be suitable for a multi-million pound corporate dispute, where the issue is purely about money. In that situation, the parties could engage in written negotiations, aiming to limit the areas of dispute, and then consider making tactical offers under Part 36 of the Civil Procedure Rules…sorry stepping into some legal speak. To explain, a Part 36 offer is an offer to settle the claim which complies with the requirements set out in the rules which all lawyers and courts follow, the Civil Procedure Rules. This rule provides for specific cost consequences where there has been a Part 36 offer that was not accepted and the party to whom the offer was made then fails to achieve a better result at trial.

Part 36 offers are tactical because they can put pressure on the other side to settle, but also protect you with regard exposure to costs. As with the rest of the Civil Procedure Rules there are strict requirements that you must comply with if you intend your offer to have the consequences of Part 36. These are outlined in detail in the Rules, for example, the offer must clearly state that it is made under Part 36 of the Civil Procedure Rules.

There may be times where a Part 36 offer may not be suitable for your case, or perhaps you are not yet in a position to make a Part 36 offer. There are other types of offers you can make. For example, simple ‘without prejudice save as to costs’ offers, otherwise known as ‘Calderbank offers’. My clients often ask me whether it will weaken their case if they make a settlement offer. The short answer is no, providing it is made without prejudice. This means, that if the matter did escalate to court, all without prejudice correspondence and negotiations are kept private from the judge, so the judge’s decision is not swayed either way. It is common ground between lawyers and judges that court action should be a last resort. You could face cost penalties if you took a matter to court and refused to engage in some form of alternative dispute resolution, such as mediation or written negotiations. If you mark your settlement letters ‘without prejudice save as to costs’ you can bring that letter to the judges attention, once judgment has been given, so any offers can be considered when it comes down to the question of who pays what costs.

Our litigation team at stevensdrake can advise you on which methods of settlement are appropriate for your case, and give you advice as to when the best tactical time will be to make settlement offers. We can liaise with the other side, and attack their merits, rather than attack them. Depending on your goal, stevensdrake can work towards a suitable process for dealing with any differences you may have with the other side and find comfortable methods of settlement for you. Sometimes settlement does not work. Sometimes the other side might be stubborn and not give in at all. In those situations, stevensdrake will advise you on the best methods of settlement negotiations, which may not result in a settlement, but may protect you when it comes down to costs. The art is to encourage the other side to agree with what you want, while making them believe they are getting a good deal.

If you have a dispute, or would like advice on settling disputes, then please contact Lucy Penfold on 01293 596984 or lucy.penfold@stevensdrake.com.

Can you terminate a contract if there has been a breach of a term or condition?

A breach of contract could give the innocent party the right to seek damages, but a serious breach could potentially also give the innocent party the right to terminate the contract. This is called a repudiation or a repudiatory breach.

In order to assess whether there has been a breach of contract, you will first need to look at the terms and conditions of your contract.  

The following could be a repudiatory breach:

  1. A breach of a condition. An example of a condition is where a contract specifies that “time is of the essence”, and one party fails to meet that obligation;
  2. A fundamental breach of an intermediate term. This means that if a breach deprives the innocent party of the whole of the benefit of the contract, then it will be a serious breach of the intermediate term;
  3. A party refuses to perform its obligations under the contract. An example of this is where a seller out rightly refuses to deliver the goods, even though delivery is part of the contract;
  4. A party makes it impossible or illegal for the other to perform the contract. An example of this is bribery.

A repudiatory breach does not automatically end the contract. The innocent party must choose whether it terminates the contract or not. 

Once there has been a repudiatory breach, the wrongdoer can take steps to put that wrongdoing right; however, that does not necessarily mean the contract cannot be terminated. The innocent party will still have the right to terminate the contract. Nevertheless, the wrongdoer can attempt to negotiate with the innocent party to see if the contract can be affirmed. 

If the parties cannot agree and the matter goes to court, for example, to justify termination and seek damages, the courts will look at the whether the breach was a repudiatory breach at the time of termination, and not at the time of the breach itself. Any remedial action taken by the wrongdoer, before the innocent party terminates the contract, will therefore be taken into account. It is therefore crucial to ensure that you can validly terminate the contract, and ensure that, if you do, there will be no penalties or damages which the other party could claim against you.   

The effect of Brexit on contracts

The effect of Brexit on commercial contracts is currently unclear. We do know, however, that the withdrawal of the UK from the EU will take years to complete and it could have a disruptive effect on a commercial contract in the future. For example, there may be an increase on the price of goods which might make it impossible for one party to make a profit under the agreed prices in the original contract. Whether that effect gives rise to terminate the contract will depend on each individual contract and the terms of those contracts.   

stevensdrake can assess whether a breach is repudiatory or not and, if it is enough to validly terminate the contract, whether termination is the right course of action for you. We can help you give notice of termination, if that is what you choose to do and claim any potential damages. 

If you would like more information, or you are a party to a contract which has been breached (whether you are the innocent party or the wrongdoer), we can look at that contract and advise you as to your options and next steps. For more information, please contact Lucy Penfold on 01293 596984 or lucy.penfold@stevensdrake.com.

stevensdrake named Best Law Firm for Collections at National Awards

stevensdrake at CTA 2017

stevensdrake at CTA 2017

Crawley based lawyers, stevensdrake, have been named ‘Best Law Firm for Collections’ at the Credit industry’s largest and most prestigious awards event, the 2017 Credit Awards.

The independently judged awards are designed to reward best practice, compliance, and innovation across the credit industry.

The team beat law firms such as Mischon de Reya, Blaser Mills, Moriarty Law,  Mortimer Clarke (part of Cabot Credit Management Group and Spratt Endicott to win the accolade at the ceremony, held on 11th May at the Grosvenor House Hotel in London.

Harry Tumber, Head of Collections, commented: “To have been selected as best in class by a judging panel of industry leaders, against the highest calibre of competition, speaks volumes about the experience and capability of our team, and our commitment to achieving the highest standard of collections conduct.”

Adding: “During 2016 we deployed new strategies aimed at providing customers more information about the process, earlier, instead of taking the traditionally abrupt approach of simply serving a Letter before Action. This has resulted in increased contact rates which helped to achieve a 19% increase in collections performance on behalf of our clients.”

 This is the second piece of good news for the firm, they have been announced as finalists for ‘Best Law Firm’ at the upcoming 2017 Car Finance Awards which take place in Nottingham on June 8th, coming off the back of the firm being the first law firm to achieve Approved status with the Finance and Leasing Association’s Specialist Automotive Finance (SAF) Training. 

 Harry Tumber, commented: “To be named as Finalists at the Car Finance Awards recognises our focus, experience and successful results achieved for clients in this space. To support this, our SAF Approved status reinforces our knowledge of the sales process and provides our car finance clients with confidence that we are best equipped to deal with their legal collections and recovery matters.”

 For more information contact Harry Tumber on 01293 596905 or email harry.tumber@stevensdrake.com

Property Damages Claims

By Lucy Penfold, solicitor at stevensdrake.

One of my previous articles touched on neighbour disputes and gave a couple of examples of different types of disputes which could arise between neighbours. One example was a potential damage claim. This article explores damage claims further. 

Whether you own a flat or a house, commercial or residential, if your neighbour has caused/is causing damage to your property, it should be addressed and fixed. 

Examples of a damage claim could include:

  • Water damage;
  • Fire damage;
  • Damage to your fence/garden by your neighbour doing work to their garden;
  • Damage to a party wall.

The normal remedy to damage caused to your property is to claim compensation, which we call a ‘damages’ claim. A damages claim is not intended to be a ‘penalty’ for the wrong doer, it means that the wrong doer should pay you money to put you back in the position you would have been in if the damage did not occur, i.e. paying to rectify the damage or repaying you the money you have spent rectifying the damage. 

You will be expected to prove that your neighbour has caused the damage, for example, your neighbour suffered a leak which travelled into your property, and that you have suffered a loss or damage, for example, that leak has damaged your internal wall, causing mould, and as a result you have had to redecorate.  If you cannot prove that you have suffered a loss, it is unlikely you will succeed at bringing a damages claim. 

It is important to bear in mind not all loss is recoverable, some loss will be seen as too remote to recover, or if you fail to mitigate your loss properly or if your loss is partially your fault you will encounter some difficulties in recoverability. 

Our specialist team at stevensdrake can assess the causation, what loss you have suffered, whether that loss is recoverable and take into consideration all aspects of the history of the matter, such as, if your property is a commercial property and you have suffered loss of profit for your business. We can also assess whether there has been any negligence or aggravated damages (compensation for mental distress), or even future loss which should be considered. 

If you have a dispute, you will need to provide evidence to support your claim, therefore, you will need to retain details of any repair works (quotations or receipts) and details of any communications you have had with your neighbour. 

If you have a damage claim and would like advice then please contact Lucy Penfold in our Litigation team on 01293 596984 or email lucy.penfold@stevensdrake.com.

Neighbour Disputes

By Lucy Penfold, solicitor at stevensdrake.

Generally speaking, home owners are very proud of being home owners. It’s an achievement for some and a goal for others. You do as much as you can to protect your property but sometimes you might encounter unforeseen problems with your neighbours, which could turn awkward or nasty. 

There are many different types of disputes which can arise between neighbours. I often get asked questions like:

  1. “My neighbour is doing work which is causing/has caused damage to my property, what can I do?”
  2. “My neighbour has erected a fence on my land, what can I do?”
  3. “My neighbour says he has a right of way over my driveway so I can’t park there, what can I do?”

…there are many more such examples.

However, these examples show three very different types of disputes. The first shows a potential damage based claim, the second shows a potential boundary dispute and the third a potential right of way dispute.  You could encounter more than one type of claim, for example a boundary dispute which has incurred damage to your property.

It is important to seek legal advice if you encounter a neighbour dispute from the outset so you understand what your legal position is and whether you, or your neighbour, has acted lawfully. Our specialist team at stevensdrake can investigate the land and consider any relevant factors which might affect your position, and advise you on the best way to resolve the dispute.

Whatever the dispute is, you need to remember that you will have to continue living next to your neighbour until (or if) one of you moves. Therefore, court action should always be a last resort. First, have a friendly chat with your neighbour to try and resolve the issue. If that fails, then you should consider alternative ways to resolve the dispute and stevensdrake can assist with this, which could include using negotiation, independent surveyors or even mediation if appropriate. 

Our litigation team at stevensdrake will consider any options available to enable you to reach a resolution.   

If you have a dispute with your neighbour and would like advice from our litigation team then please contact us on 01293 596900 or email lucy.penfold@stevensdrake.com.

Boundary Disputes

By Lucy Penfold, solicitor at stevensdrake.

Boundary disputes are very common amongst neighbours, often because it can be extremely difficult to establish where the boundary of a property is if it is not specified in the deeds, or if there is no Land Registry compliant survey, or if the plan on your title alone is not exact enough to determine where the boundary accurately lies. 

However, it is clearly important to know where the boundary is because this determines, in respect of land, the rights and liabilities of the property owner or occupier. 

What is a boundary?

A boundary is generally a line which separates two pieces of land. It could be physical, for example a fence, or artificial, for example where there is no fence or wall between your and your neighbour’s driveway. 

How do you know where your boundary is?

The first place to look to see where the boundary is, is your property Deeds. If your Deeds do not contain any provisions, or your Deeds contain conflicting provisions to your neighbour’s Deeds, then there are other ways you can determine where the boundary is, for example, by considering the Ordnance Survey map, instructing a surveyor to determine where the boundary is, or even informally agreeing the boundary with your neighbour.   

Experience has highlighted a few common examples of how boundary disputes can arise including:

  • Neighbour erecting fencing in a different place;
  • Fencing already being standing, however it does not match the line which appears on the title plan;
  • Garages or out-buildings have been built, or are scheduled to be built, on part or all of your land. 

A word of caution, it is important to bear in mind that your boundary could have changed over the years because your predecessors have reached an agreement with your neighbours, or even your neighbour’s predecessors. 

Boundary disputes can be very complicated, time consuming and expensive in the arguing of them. It is crucial you seek legal advice to ensure that the dispute is resolved and the boundary is properly documented, in order that should any future disputes regarding that same boundary arise, then they can be more easily resolved. 

If you have a boundary dispute and would like legal advice, then please contact Lucy Penfold on 01293 596984 or email lucy.penfold@stevensdrake.com

When is the best tactical time to use a solicitor in a dispute?

By Lucy Penfold, solicitor at stevensdrake.

Disputes are commonplace in today’s society, but they can often be resolved between the parties themselves. There are occasions where the ‘S’ word needs to be used, to give negotiations a “push” but when is the right time to threaten this? In my opinion, this depends on the dispute and whether the other side are being reasonable or not. 

Disputes arise when two or more people do not see eye to eye and arise from almost any type of activity from breach of contract to negligence to disagreement over the contents of a will to mention a few. For them to be resolved, one or more party will need to either back down or be prepared to negotiate which usually involves a compromise by one or both. If negotiation does not seem likely, then you might need a solicitor involved to aid a settlement, commence or defend proceedings. Cost will inevitably be a concern for both parties; however, there are a number of benefits which come from instructing a solicitor. 

One of the main benefits you will get from using a solicitor is that it will allow you to understand your legal position from the outset of your case. If you are bringing a claim, or defending one, you will need to put your legal position forward at the beginning and the courts will expect you to show you have tried to settle the claim but if you can’t, why you are legally entitled to bring/defend your claim and on what grounds.  A solicitor will consider the merits of your case and if there is enough evidence to form an opinion at that time, will look at the grounds on which you can bring or defend a claim. A solicitor will also explain what options are available to you, and advise you which options you should take and when. 

Your solicitor will also help you understand what evidence you may have, or need, from the start, i.e. previous email threads or communications, documents, contracts, speak to witnesses and so on. Clients are naturally concerned about cost and so limit how much documentation they disclose to a solicitor at the outset under the misapprehension that providing less will save cost. In fact it is often better if clients provide as much as possible at the outset rather than select what they feel is most relevant, although of course pointers can help considerably. It will take a solicitor less time and therefore cost to the client, if he/she does not have to keep coming back to you if there appears to be something missing. If there is not enough evidence at the start, then it would be beneficial to commence pre-action correspondence with the other side and any witnesses to ‘fact-find’. 

Once you understand your legal position and the grounds on which you should base your claim or defence, your solicitor can adviser you on how to, or can him or herself,  engage in negotiations with the other side, and tactically consider when the right time to make an offer would be, and what offers to make. Sometimes, it only takes a letter from a solicitor to show the other side you are serious about your case, and that may aid a settlement itself. If the dispute does proceed to court, the court will expect the parties to have tried to negotiate a settlement so this may give you greater protection when it comes to costs. 

Lastly, but by no means least, by instructing a solicitor you will potentially save yourself a considerable amount of time and stress. If the other side is not prepared to back down, and you want to push to trial, there are strict procedural rules and time limits which must be followed. It takes a lot of time to bring a case to trial; some larger cases can go on for years before the court will make a decision. A good solicitor can take on your case and deal with the weight of preparation and consideration of the issues, which will then free-up your time so you can carry on with your own day-to-day business and lifestyle. 

In summary, taking advice from a solicitor at the beginning, does not mean you need to threaten the ‘S’ word at that time. It may be the right action for your dispute to take advice at the start to see where you stand so you can enter negotiations yourself. You can always instruct a solicitor later if negotiations are unsuccessful.  Whatever your position, our specialist team can advise you of the best tactical, cost effective way to move forward.    

If you have a dispute and would like initial advice, then you can contact me, Lucy on 01293 596984 or email lucy.penfold@stevensdrake.com.

stevensdrake named as a Finalist for ‘Best Law Firm for Collections’

Crawley based lawyers, stevensdrake, have been shortlisted for ‘Best Law Firm for Collections’ by the Credit industry’s largest and most prestigious awards event, The Credit Awards.

The independently judged awards are designed to reward best practice, compliance, and innovation across the credit industry.

Harry Tumber, Head of Collections at stevensdrake, said: “We are honoured to have been shortlisted in the Collections category at the 2017 Credit Awards. This is a testament to the dedication and hard work of our highly-experienced team, who are determined to deliver outstanding service and fair outcomes to customers combined with excellent collections performance for our clients. 2016 saw us deploy revamped strategies, providing customers with more information about the process, earlier, instead of taking the traditionally abrupt approach of simply serving an LBA. This exemplifies our commitment to a higher standard of collections conduct and has resulted in regular commendations for achieving positive outcomes for our client’s most difficult cases.”

stevensdrake has been collecting debt portfolios for in excess of 40 years on behalf of a number of household name creditors for whom brand protection is vital. Their experience spans a wide range of debt types including consumer and commercial loans, credit cards, asset finance and motor finance.

The Credit Awards, now in its 18th year, is hosted by independent publication Credit Strategy and takes place in London on May 11th, when the team at stevensdrake will learn if they are to be crowned the overall winners.

http://www.creditawards.co.uk/winners/finalists2017

For more information contact Harry Tumber on 01293 596905 or email harry.tumber@stevensdrake.com

Crawley on a High

By Paul Dungate, Head of Business Law at stevensdrake

I read with interest recently that Crawley has the highest employment rate of any town, not just in the South, but the UK, and that it also boasts the third highest wages in the UK. That’s quite a record for a town that I think is often over-looked and perhaps viewed as separate from the ‘Gatwick Diamond’ of which it is in fact the manjor key part.

Just recently, the latest ‘Trainspotting’ film was previewed in Crawley in order to gain audience reaction, the reason for this being that the film makers thought that ‘Crawley represented the most average town in the UK’. I’m not sure the unemployment and wages statistics support that claim; I’m sure there are many residents of towns the length of the country looking at those statements with envy.

The Centre for Cities 2017 report from which the statistics originate looks at 63 towns across the UK and also highlighted some other interesting facts about Crawley:

  • It has the seventh highest number of patents granted per 1,000 people
  • It’s the eighth most productive city in the UK with an average gross value added standing at £59,500 per worker
  • It saw an annual increase in business start-ups of 29% – the third highest in the UK and 20% above average.

So, what a good time it is to be doing business in and around Crawley. It’s evidently booming, borne out by our work levels certainly. It is certainly not ‘average’.

There’s no doubt that the town’s proximity to Gatwick brings with it huge benefits and it’s fair to say that, as a legal practice, the level on international business we do is probably more than many other town-based solicitors. We also see a great deal of activity and work arising from both those starting businesses and those selling businesses, supporting those facts laid out by the recent report.

I would also point to the excellent non-air transport links that Crawley offers as well. Its proximity to the M23 and M25 make for part of a very key network for those businesses with distribution needs, as does the location relative to key ports across the south of England.

All in all, Crawley is currently a great place to do business.

For more information contact Paul Dungate on 01293 596981 or email paul.dungate@stevensdrake.com

Mediation: what is it? Do you need legal representation? Why it’s important?

Mediation is becoming increasingly more common these days, especially as the courts like to see that parties have demonstrated a willing to try and reach an agreement before any court hearings.

What is mediation?

Mediation is where the parties come together to discuss the issues with a mutual, impartial person, in an attempt to reach an agreement. The mediator will not take sides and will not give any legal advice, but will assist the parties in their decision making. Anything discussed during the mediation will remain private and without prejudice to the court proceedings, this means it cannot be relied on at court. If an agreement is reached, it will become binding and the mediator will usually draw up an order or agreement which can be enforced if it is broken.

Mediations can take place in various forms, such as a telephone mediation or by using a private mediator.

Telephone mediation is particularly common if you have opted to use the free courts mediation service after issuing a claim.

Alternatively, you can use a private mediator, funded by the parties jointly. Parties can either remain in separate rooms and the mediator will go from room to room, or the parties can, at some point during the process, come together to discuss the issues face to face with the mediator present. This style of mediation is beneficial if there are lots of different issues and emotions which need tackling, or if one party is looking for an apology.

It’s worth remembering that you do not have to be in the middle of court proceedings to use mediation. A private mediation session can be arranged before proceedings are issued. This is useful if the value of the claim is very large, but you are confident that an agreement can be reached, without the need of paying the high court fees, which are of course continually increasing.

How we can assist

Having legal representation will ensure that the process is as smooth as possible, and that the correct issues are discussed in the mediation.

If the mediation is a telephone mediation with the courts, we can speak with the mediator so you don’t have to.

If the mediation is a private mediation, we can prepare the relevant papers for all sides, liaise with the other party, arrange suitable timescales, advise you as to what issues we should focus on in order to achieve the best possible settlement for you and highlight these areas and your legal position to the mediator.

We can also ensure that you have the best type of mediator for the dispute. Some mediators specialise in certain types of disputes, and we can recommend or find specific mediators for the dispute at hand.

Why is it important?

Mediation is important for a number of different reasons, such as:

Cost and stress

If a claim has been issued at court, the courts like to see that parties have attempted to settle the matter before trial. If the courts decide you unreasonably refused mediation, they could order you to pay not only your own costs, but all or part of the other side’s costs, whether you were successful in your claim or not.

Court proceedings should always be a last resort. Court is stressful, timely and very costly. Mediation can be just as effective, and is also legally binding, but it can be a fraction of the cost of taking a claim to trial. With business related claims you should not underestimate the effect of losing management time in the business.

Emotion

If there is a lot of emotion between the parties and you want to maintain some form of relationship with the other party then mediation is a good way to deal with disputes. If the matter goes to court, the court will not consider feelings, like you can in mediation, and will make an order based on the law and fact. This could cause the relationship between the parties to completely breakdown and be unrecoverable.

Flexibility

A mediation date can be agreed between the mediator and both parties, and can last as long as necessary. The courts are less flexible, settling down strict deadlines which must be complied with. If a party is unable to make any of the deadlines or hearings, a formal application must be made seeking permission to change the dates. This of course can be very expensive.

Speed

A mediation appointment can be set as soon a practicably possible. The parties will not need to deal with specific preparation, other than providing the mediator with copies of the documents. If the matter went to court, there will be lengthy directions, and it could take months, or even years until a final order is made.

No matter how good your case appears on paper, things can go wrong at court e.g. if the witnesses do not perform as they should on their written evidence, or if the judge disagrees with your case. Settlement via a mediation (or any other process) gives you certainty so you can spend your time on other things.

If you have a dispute which you think would benefit from using mediation, then please contact Lucy Penfold on 01293 596984 or lucy.penfold@stevensdrake.com