Negotiated settlements

kennM

Negotiated settlements... interested to get thoughts, process, lessons learned, stories, advice.

Cheers

johnnyskeleton

As in, where one side says one thing, the other another, they reach middle ground and the case is over?

Yep, I'm in favour of them

kennM

johnnyskeleton wrote: »

As in, where one side says one thing, the other another, they reach middle ground and the case is over?

Yep, I'm in favour of them

Thx... had hoped for a bit more insightful in depth experiences and advice but this works too :rolleyes:

johnnyskeleton

kennM wrote: »

Thx... had hoped for a bit more insightful in depth experiences and advice but this works too :rolleyes:

What exactly were you expecting? Your post is the equivalent of going into the soccer forum and saying "Man United, any thoughts?"

kennM

johnnyskeleton wrote: »

What exactly were you expecting? Your post is the equivalent of going into the soccer forum and saying "Man United, any thoughts?"

"Man United, any thoughts" - Yep, game is a bit dull at the moment. They've reached half time at nil all. They're very much playing a strategy of getting everyone behind the ball and frustrate Bayern which seems to be working so far. Bayern are having difficulty in trying to break them down. Regarding second half.... they can't do the same.... they are behind on the away goal so need to go out and score if they want to progress

I'd hoped "process, lessons learned, stories, advice." - Would have elicited a little more

234

Be more specific. What do you want to know?

Pat Mustard

kennM wrote: »

Negotiated settlements... interested to get thoughts, process, lessons learned, stories, advice.

Cheers

The lawyers meet like bucks in rut. There is to and fro between respective clients, to advise on offers and take instructions.

If the parties agree on a figure, the action is usually discontinued.

Advice: go along early and get a nice consultation room for yourself, if possible. Bring a newspaper, because there is a certain amount of sitting around. And bring your phone, fully charged, so your solicitor can find you if you go off for coffee.

kennM

"Notice of tender offer" - can anyone explain in detail for me? as I understand it its the proverbial carrot that the defense will hang infront of you to settle in advance of court trial. Judge is not made aware of tender offer. If judges settlement figure is less than tender offer then plaintiff pays defendants costs, if its over than defendant pays plaintiff costs? Are there rules around how many there can be? If there are timeframes/rules around them?

Any other clarity there? thx

kennM

kennM wrote: »

"Notice of tender offer" - can anyone explain in detail for me? as I understand it its the proverbial carrot that the defense will hang infront of you to settle in advance of court trial. Judge is not made aware of tender offer. If judges settlement figure is less than tender offer then plaintiff pays defendants costs, if its over than defendant pays plaintiff costs? Are there rules around how many there can be? If there are timeframes/rules around them?

Any other clarity there? thx

Is it a once off official position or can the notice of tender offer be revised and revised in the run up to the trial date?

Pat Mustard

http://www.courts.ie/rules.nsf/0/2c4960201fe4932080256d94005f71f4?OpenDocument

stepinnman

There are many ways to skin a cat... Or in this case to put pressure on the Plaintiff (or for that matter a Co-Defendant) in the run up to a trial.

Tendering can be very effective but usually only where the Tender Offer is a true reflection of your assessment of the value of the claim (as opposed to being used as a 'first offer' or low bar from which to bargain). 'The Mustard' has posted the link to the Court rules but Tendering can be a complicated business - although it needn't be - and timing is important. Many Defendants will Tender with their Defence while others will wait till later in the proceedings.

Unless I'm mistaken (and I was wrong once!), once the Notice of Trial is served you need leave of the Court to Tender or to increase an existing Tender. If the Notice of Trial is more than 12 months old though I think you can go again.

Good old w/p letters or Calderbank letters are potentially as effective as a Tender and perhaps offer a little bit more by way of wriggle room in negotiations. You can also make a w/p offer inclusive of legal costs, whereas Tenders are generally, if not always, exclusive of costs.

The difficulty with Tenders, or really any w/p offer, in my experience, is that to get the true value from them you have to run the case and take the risk of losing, with the attendant costs, and generally against 'men of straw' against whom you won't recover costs even if they don't beat the tender.

The level of detail in negotiations varies wildly, with many being little more than horse trading,often regardless of the complexity of the case or legal issues involved, while some, generally higher value claims, can become very detailed examinations or considerations of particular points of law and deliberation as to which way a Court may ultimately fall.

Psychological warfare!

kennM

stepinnman wrote: »

There are many ways to skin a cat... Or in this case to put pressure on the Plaintiff (or for that matter a Co-Defendant) in the run up to a trial.

Tendering can be very effective but usually only where the Tender Offer is a true reflection of your assessment of the value of the claim (as opposed to being used as a 'first offer' or low bar from which to bargain). 'The Mustard' has posted the link to the Court rules but Tendering can be a complicated business - although it needn't be - and timing is important. Many Defendants will Tender with their Defence while others will wait till later in the proceedings.

Unless I'm mistaken (and I was wrong once!), once the Notice of Trial is served you need leave of the Court to Tender or to increase an existing Tender. If the Notice of Trial is more than 12 months old though I think you can go again.

Good old w/p letters or Calderbank letters are potentially as effective as a Tender and perhaps offer a little bit more by way of wriggle room in negotiations. You can also make a w/p offer inclusive of legal costs, whereas Tenders are generally, if not always, exclusive of costs.

The difficulty with Tenders, or really any w/p offer, in my experience, is that to get the true value from them you have to run the case and take the risk of losing, with the attendant costs, and generally against 'men of straw' against whom you won't recover costs even if they don't beat the tender.

The level of detail in negotiations varies wildly, with many being little more than horse trading,often regardless of the complexity of the case or legal issues involved, while some, generally higher value claims, can become very detailed examinations or considerations of particular points of law and deliberation as to which way a Court may ultimately fall.

Psychological warfare!

Do Calderbank Letters apply to personal injury claims, I'm assuming yes?

With regards to a tender its very much black and white as I see it, i.e. in the event the court awards less then the lodgement/tender governs that the plaintiff is liable for legal costs from the time of the tender/lodgement.

With the Calderbank letter it does not appear to be black and white, i.e. the court has discretion as to whether to regard it or not? Anyone got any interesting insights here, how courts have reacted/dealt with their presence when highlighted....

From my research I would also assume the costs applicable are legal costs FOLLOWING the date of the letter rather than all legal costs from the outset of the claim process?

BTW - thx stepinnman! appreciate the insight!

stepinnman

Black and white it may be but that doesn't take any account of the commercial realities in most cases taken by an individual in their private capacity...whether a Defendant is insured or not, even if the Plaintiff doesn't beat the Tender you will hardly ever receive instructions to pursue the Plaintiff for your costs from the date of the Tender as its just not worth it.

Technically you shouldn't be paying the Plaintiff's costs from date of Tender either of course, and will 'save' in that regard.

No matter what the rules say costs orders are almost always at the discretion of the Court and the reasonableness of the parties in their conduct with one another, amongst many other factors, will be taken into consideration.

Tendering / w/p offers is an interesting and technical area and one in which a bit of judicial bottle in making costs orders against Plaintiffs on a more consistent basis would have the potential of making Plaintiff's (and perhaps less scrupulous 'lawyers') think twice about running cases up to hearing and ignoring reasonable offers from Defendants.