'Without prejudice' negotiation

[tecate]

I have a quick query on 'without prejudice' offers. I want to go back to the other party with a counter-offer - with a view towards settling a matter.

I know that 'without prejudice' status protects me in terms of not being able to refer to it if the matter reaches the courts. Whilst I don't want the amounts discussed in court, I'd like to make it clear that I've given the other side an opportunity to settle. Also, I'd like it to be known that I've given them the opportunity to re-instate the damages directly rather than opt for a settlement on the basis of cash indemnity.

Am I asking too much here? i.e. Is it wrong of me to try and identify these elements in subsequent proceedings without any mention of the specifics of the haggle in terms of cash indemnity?

I guess I could write to them separately and ask them to reconsider reinstatement works rather than cash indemnity. Once that's knocked back, follow up with the 'without prejudice' letter - which would then only deal with negotiation of a cash settlement?

Can a 'without prejudice' communication be mentioned in a vague way? i.e. I'd like to impress upon the court (should it go that far) that I have made an attempt to settle the matter. Can this be stated without going into detail?

 

[Thirsty]

I lost track about half way through your post.

If you want to negotiate a settlement, negotiate a settlement.

Making a half-arsed effort to try and look good when it comes to court is just a waste of time & frankly makes you look like an ejit.

 

[Palerider]

I would be interested in views here as it is something I have engaged in wth some success over recent years, none of my settlement offers went to Court but I was always curious about the what if side.

 

[Jim Stafford]

If you are the plaintiff then you are in the driving seat.

It is the defendant who can use the protocol of "Without Prejudice save as to costs" to concentrate your mind. Say for example you are claiming €100,000, but before proceedings are issued the defendants make a "Without Prejudice save as to costs" offer of €75,000, and the case goes to a full hearing and the court only awards you €70,000, then the entire costs are awarded against you. A well pitched offer can quickly settle a case, and sometimes, from the defendant's perspective, it might help them to settle for less than the true value of the case.

Even if you issue proceedings, the defendants can issue a "Without Prejudice save as to costs" offer at any stage.

Without Prejudice discussions can be a useful way to tease out what possible defences the defendants have.

Some litigation is fraught with uncertainty!

Jim Stafford

 

[tecate]

If you want to negotiate a settlement, negotiate a settlement.

Of course I want to negotiate a settlement. The issue has been approached by way of haggling as regards what the defendants responsibilities are in terms of specific damages to be covered. Positions have become entrenched as to what they believe should be covered and what I believe should be covered in terms of interpretation of the contract.

Making a half-arsed effort to try and look good when it comes to court is just a waste of time & frankly makes you look like an ejit.

It's not an exercise in superficial optics.
In brief, liability has long since been conceded. The wrangling has been over the extent of the remediation works required in order to make good on the loss. The defendant had been looking all along for direct reinstatement until we hit this impasse over scope of remediation and also the need for the defendant to stand over any works they carry out. They want to palm off any such responsibility to a third party contractor - with which, I have no direct contract.
They have now opted for cash indemnity rather than direct remediation (its their contractual right to choose either/or) for full and final settlement. I am going to pitch a figure based upon what I've costed the works to be (inclusive of the items that they were not prepared to incorporate when we were negotiating the actual works required). I also want to offer the option of allowing them to proceed with remediation as per their specification BUT only if they offer to guarantee / stand over the works themselves (they are vehemently opposed to offering such an undertaking - and are trying to pass this on to a third party who I don't have a direct contract with) That is to say, if their remediation works turn out to be insufficient and further defects emerge, then they have an obligation to remediate once more. I believe I am being reasonable by offering either option. i.e. if they think that the figure that I've produced is unreasonable, then they can roll with the specification that they suggested. I want it to be seen by the arbitrator (It's arbitration this is going to) that I have been genuinely reasonable in my approach. Surely there's some merit in that rather than it being an exercise in making me 'look like an eejit'?

Without Prejudice discussions can be a useful way to tease out what possible defences the defendants have. Some litigation is fraught with uncertainty!

We're pretty sure of the defence that the defendants are running with -it's a case of contract interpretation and the advice I've received suggest them to be wrong. It's arbitration so it will be a case of determining the extent of damages. What I don't want is a scenario whereby legal costs go against me.

 

[jdcarn]

Jim Stafford - can you explain ?
" If you are the plaintiff then you are in the driving seat. "
" Without Prejudice discussions can be a useful way to tease out what possible defences the defendants have. "

 

[newtothis]

Some litigation is fraught with uncertainty!

Surely that should be “all litigation......”