# will defendant's offer predjuice my case?



## apricottree (14 Sep 2011)

I have an impending District Court case which I am taking as a lay litigant as can't afford a solicitor. I have been made an offer informally by the defendant's solicitor to dispose of the matter, which I refused.

Q: If they make this offer formally in writing, and if I subsequently refuse to accept it, and they inform the court that this formal offer was made, can it in any way harm my case? 
Can it be held to be a reasonable offer by the Court, and result in me paying the costs of the Court for failing to accept it?


Q: anyone know a good solicitor, interested in working for free, in the pursuit of justice and the public good??? seriously...


many thanks


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## onq (14 Sep 2011)

Without knowing the details of the offer and your case its impossible to say, but publishing them here might do your case more harm than the offer, so I don't advise you do this.
However I would suggest that offers made informally aren't worth the paper they're not written on.
You sound like you desperately need confidential legal advice - and soon.

ONQ.

All advice on AAM is remote from the situation and cannot be relied upon                             as a defence or support - in and of itself -        should       legal        action    be      taken.
Competent legal professionals should be asked to advise in                             Real Life with rights to inspect and issue      reports    on     the         matters    at      hand.


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## csirl (15 Sep 2011)

If you are seeking monetary compensation for the alleged incident, and the defendant is willing to pay you the compensation you are seeking, then you must accept.

If they are offering less than you are seeking, then you are entitled to go to hearing. At hearing, the Judge will decide, based on the merits of the case, what compensation (if any) should be paid.

If you are successful in court, and the Judge awards you an amount equal or less than the amount that the defendant offered in advance, then the defendant is entitled to seek costs from you on the basis that as they offered the amount that was awarded in court, you wasted their time/money by going to court.

Nobody on this forum is in a position to say whether or not the offer is fair. You have to decide whether or not it is worth accepting by comparing it with what you realistically expect to be awarded in court.


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## onq (15 Sep 2011)

+ 1 what csirl has posted and to underline your choice.

Accept their offer of a lesser amount now, where they pay their costs and you pay your own costs to date...

OR

Risk going before a court and not getting what you think you're entitled to.

Even if you win, but the amount awarded is equal to or below their current offer, you will end up having to pay their costs out of your own pocket.
This balancing act is why so many cases are settled outside of the court  itself - read my signature file carefully and talk to a competent  professional in real life.

Perhaps csirl could correct me if I'm wrong in this next part.
You may be able to apply to the Taxing Master to have their costs reduced, but it is by no means certain this will occur.

_"The Taxing Master provides an independent and impartial assessment of  legal costs incurred by an individual or company involved in litigation  ("taxation of costs"). This means, that they assess the fair and  reasonable amount that one party has to pay to the other side. There are  currently 2 Taxing Masters in Ireland, both of whom are based in  Dublin. (See 'Where to apply')."_

_"The Taxing Master does not have any regulatory or  investigative powers in relation to complaints about excessive charges  by solicitors in Ireland for legal services. Complaints about excessive  charges should be referred to the Law Society of Ireland."_


ONQ.

All advice on AAM is remote from the situation and cannot be relied upon                              as a defence or support - in and of itself -         should       legal        action    be      taken.
Competent legal professionals should be asked to advise in                              Real Life with rights to inspect and issue       reports    on     the         matters    at      hand.


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## Brendan Burgess (15 Sep 2011)

Apricot

I don't think that either onq or Csirl are solicitors and I would question their interpretation. I am not a solicitor, so they may be right. 

You may not be a solicitor, but you can ask a solicitor this specific question. 

As it's an informal offer, it has no relevance. 
I don't think that a formal offer has much relevance either. 

However, if they "lodge an amount in court" and the subsequent damages are below this, you would be liable for their costs. If the damages are in excess of this you would get the award and your costs.


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## apricottree (15 Sep 2011)

thanks all, that's been very helpful, it seems you are all concurr on the main point. I will await the formal offer and give it due consideration .

many thanks!


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## onq (16 Sep 2011)

To clarify what Brendan has alluded to, no, I am not a solicitor or a Barrister, which is one of the reasons my sig file includes the sentence -
_"Competent legal professionals should be asked to advise in                               Real Life with rights to inspect and issue       reports     on     the         matters    at      hand.         "_

What Brendan refers to seems to be the accepted way of formalizing an offer before a court.
Its known as "lodging a bond with the court" in colloquial terms and is part of the many ways one party can seek to gain advantage in a dispute.

If they know they're going to lose anyway, this is one way to make the plaintiff pause, for the reasons mentioned above.
Its a bit of a minefield, which is why I suggested you take legal advice as opposed to comment more fully here, but you can read up associated matters here.

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

http://www.courts.ie/rules.nsf/0/e3787441a839d7bc80256d2b0046a074?OpenDocument

As you can see, even filling out the right form is not straightforward!
You need solicitors advice to successfully navigate these waters in my opinion.


ONQ.

All advice on AAM is remote from the situation and cannot be relied upon                               as a defence or support - in and of itself  -         should       legal        action    be      taken.
Competent legal professionals should be asked to advise in                               Real Life with rights to inspect and issue       reports     on     the         matters    at      hand.


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## onq (16 Sep 2011)

Just another comment on "offers" in general, from my experience.

Its when offers are  being made that you need to take solicitors advice - taking advice after  you respond may be too late!
Waiting around for a formal offer that may never come may not be the appropriate to move this forward.

*"Without Prejudice" letters*

Offers, as opposed to bonds lodged with the court, can be made in  writing but are usually headed "without prejudice" and/or "offer made  subject to final agreement" or some such wording to distinguish them  from offers which may be taken as part of a contract  [offer/acceptance/consideration offers]. Such offers in my experience  are not intended to be binding but to allow parties room for manouevre  in reaching an agreement. If you're getting offers - including informal  offers - you should be taking legal advice on how to deal with them. 
*
"Full and Final Payment" letters*

Other offers may be made by people send you money in the forms of  cheques or other means, with a cover letter stating that this money is  given in "full and final settlement" of the matter in dispute. Be  careful how you deal with these because some English law suggests that  as long as you accept it and say it isn't regarded as a full and final  settlement or binding, then it isn't, and you can still seek more.  Again, seek legal advice for an Irish context.

This above comment are offered from my non-legal knowledge and experience.
I welcome comments from solicitors or experienced clarifying any of the comments in any of the posts above.

ONQ.

All advice on AAM is remote from the situation and cannot be relied upon                                as a defence or support - in and of  itself  -         should       legal        action    be      taken.
Competent legal professionals should be asked to advise in                                Real Life with rights to inspect and issue        reports     on     the         matters    at      hand.


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## apricottree (16 Sep 2011)

I may be reading this incorrectly, but is there a time limit to which the Court can be notified of a settlement offer?


_[Notice of intention to defend]
_1. A defendant who intends to defend a civil summons shall give, or send by post, to the plaintiff or solicitor for the plaintiff notice of such intention, in the Form 41.1, Schedule C, not later than four days before the date of sitting of the Court to which the civil summons is returnable, and shall at the same time lodge with the Clerk a copy of such notice.

_[Lodgment in satisfaction]_
2. (1) Together with the notice of intention to defend, *a defendant may lodge in court a sum of money which he or she alleges is sufficient to satisfy the plaintiff's claim*, whether with or without an acknowledgement of liability, and thereupon shall notify the plaintiff or solicitor for the plaintiff of such lodgment. *No lodgment of money under this rule shall be made later than the time prescribed in rule 1 hereof save by leave of the Court.*


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## onq (16 Sep 2011)

By way of clarification, I provide architectural expert witness services and work with the client and solicitor on setting up the conditions leading up to the case - inspections, surveys, reports - as opposed to running the case itself. Thus, I'm usually the one being informed of the dealing by both our and the other side, so the details of what gets lodged, why, how when and by whom is not my domain.

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My experience of being a spectator to proceedings is that the bond lodged with the court is not a "settlement offer" per se. I have seen bonds entered where no settlement was separately discussed. The bond is a way for one party to concentrate the mind of other party on the realities of any award that might be offered. The lodgement of such a bond explicitly says, as your quotation states - "this is what we think you're likely to get awarded." 

_"*...which he or she alleges is sufficient to satisfy the plaintiff's claim..."*_

Going by the section you're quoted, the time limit seems designed to give  the Judge four days notice of both the bond being lodged and the  defendants intention to defend the case before he/she hears the case, as  opposed to a time relating back the the issuing of proceeds after which  a bond cannot be entered.

I'm not certain how the court would inform a layperson taking their own case of the lodgement of a bond if such occurred. Where I've been involved the notification always came via the Barrister.

--------------------------------

A "settlement offer" may be between the parties outside of the court. Such offers are often passed to and fro using the good offices of the Barristers appointed to the case. Discrete see groups gather at either end of the corridors outside the courts in which the case is to be hears, each one composed of the parties to the legal action. From time to time the Barristers take the long walk from one group to the group or groups exchanging information and offers. The parties, expert witnesses and others usually stand away from the barristers during these exchanges and then cluster around them to hear the news, digest the offer and consider a counter offer.

I have seen several days pass almost entirely in the hall outside the court with no case going forward, or going forward only to be deferred - the entire time was taken up with "settlement offers". Such offers may then be ratified in detail between the sets of Barristers and the parties to the case before being written down for formal signing by both parties - up to which time there is no "deal" in place.

--------------------------------

There is a lot going on in any legal action. What I have just described is the outline circumstances of a High Court action. Its easy to be overwhelmed by it all on the day.
You see what I mean about taking professional legal advice? You need competent advice from a good solicitor, not advice at this level from this forum.
You need to be prepared going in to take the witness stand and run through your evidence by someone who is legally qualified and competent.

As before, I invite any legal reading here to rebut, correct or comment on my post.


ONQ.

All advice on AAM is remote from the situation and cannot be relied upon                                 as a defence or support - in and of   itself  -         should       legal        action    be      taken.
Competent legal professionals should be asked to advise in                                 Real Life with rights to inspect and issue         reports     on     the         matters    at      hand.


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## apricottree (16 Sep 2011)

thanks onq,
I will take your advice and seek legal advice.

my understanding of the rule I quoted:

"...not later than four days before the date of sitting of the Court to which the civil summons is returnable.."

is that this 4 days refers to the _return date_, i.e. not the hearing date, but the court hearing where the defendant lodges their intention to defend, which is well before the actual hearing date. I  am open to correction on this understanding, and will seek legal advice on this whole area. I think I will enquire with the District Clerk as well and see if anything has been lodged in respect of the case..

thanks again for your suggestions


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## onq (17 Sep 2011)

apricottree,

I'm not trying to browbeat you into this, I'm just trying to show you how much there is to know and how easy it is to make an error through simply not knowing.
Professional advice may seem expensive at the start, but my experience to date is that it saves money in the long run and sometimes turns a potential disaster into a success.

As for your last question above, I'm not familiar with it and so am not sure.
 Best of luck with the case and let us know how it turns out for you and.


ONQ.

All advice on AAM is remote from the situation and cannot be relied upon                                  as a defence or support - in and of    itself  -         should       legal        action    be      taken.
Competent legal professionals should be asked to advise in                                  Real Life with rights to inspect and issue          reports     on     the         matters    at      hand.


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## hastalavista (17 Sep 2011)

Before you take legal advice, you need to look at the potential cost in relation to what you have been offered and what might appear in a formal offer.  You could easily drop 2 to 5k on  legal fees a simple case which you seem to have brought this far on your own.

The other point is that you lose control of the case once you engage professionals and  in relation to the circus that onq has described where the barristers scurry around, you are just a pawn paying to look. 

My experience has been that the "lodge an amount in court" is always less than any formal or informal offer.


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## csirl (20 Sep 2011)

Where parties "lodge an amount in court" it is usually to do with costs. 

Where one party has doubts about the other parties ability to pay the costs of the proceedings or where one party is of the opinion the case is frivilous, they may petition the Court seeking an Order that the other party lodges an amount in court in advance to cover costs in the event that they lose. Where this happens, the case will not proceed until the ordered amount is lodged. Sometimes parties will voluntarily lodge these amounts as 'proof' that they can pay the cost of the proceedings so as to avoid being ordered to do so. I also think there are some situations where these lodgements are mandatory e.g. some Circuit Court appeals to the High Court?


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## onq (20 Sep 2011)

Wasn't there a distinction between two forms of injunction, one where you could see it coming and the other which landed on you out of the blue and you could seek the other to lodge an amount with the court to cover them should the action not succeed against you, because otherwise you would suffer and unjustified loss in terms of time, etc. Usually in the developmetn context with an adjoining owner objecting.

I may be misremembering here, so someone please correct me if I'm wrong, but I think the terms were "Interim" and "Interlocutary" Injunctions.


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## csirl (20 Sep 2011)

An Interim Injunction is a temporary emergency one put in place without notice to the other side. When granted, there is always a date set in the near future for a hearing re: in Interlocutory Injunction. 

An Interlocutory Injunction is a temporary one put in place pending a full trial on the matter. Both parties would normally be present for an interlocutory hearing. 

Full trial decides if the injuction is permenent.


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## csirl (20 Sep 2011)

csirl said:


> Where parties "lodge an amount in court" it is usually to do with costs.
> 
> Where one party has doubts about the other parties ability to pay the costs of the proceedings or where one party is of the opinion the case is frivilous, they may petition the Court seeking an Order that the other party lodges an amount in court in advance to cover costs in the event that they lose. Where this happens, the case will not proceed until the ordered amount is lodged. Sometimes parties will voluntarily lodge these amounts as 'proof' that they can pay the cost of the proceedings so as to avoid being ordered to do so. I also think there are some situations where these lodgements are mandatory e.g. some Circuit Court appeals to the High Court?


 
Checked with someone I know who works in the area. In addition to the above, you also have the following:

The Defendant can pay money into the Court in satisfaction of the claim. If the Plaintiff is happy with the 'offer' they can apply to get it paid to them in full satisfaction of the claim. If the Plaintiff decides to proceed to trial and is eventually awarded less than the lodgement, then they are liable for the costs.


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## onq (20 Sep 2011)

csirl said:


> An Interim Injunction is a temporary emergency one put in place without notice to the other side. When granted, there is always a date set in the near future for a hearing re: in Interlocutory Injunction.
> 
> An Interlocutory Injunction is a temporary one put in place pending a full trial on the matter. Both parties would normally be present for an interlocutory hearing.
> 
> Full trial decides if the injuction is permenent.



Thanks for that.

Did you happen to read which of these allows the defendant asking the plaintiff to lodge a bond with the court to cover his costs in case the case goes against the plaintiff or is dismissed?

The delay of a court action can cost a fortune in downtime during construction of a building you see, and where the case is not proven or dismissed, the defendant may suffer serious loss.


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