# Defence served 'without prejudice'



## Jer1 (12 Oct 2010)

Can a defence be put in with the pleadings stated as being written without prejudice?


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## mercman (12 Oct 2010)

AFAIK, any papers marked 'without prejudice', cannot be used in Court proceedings.


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## j26 (12 Oct 2010)

Without prejudice is only for attempts at settlements.

A defence is not that. It usually consists of a denial of the facts at issue (what is in dispute), and sometimes expressly pleads an alternative version (e.g., it is denied that the defendant sold the car to the plaintiff, and it expressly pleaded that the defendant sold the car to the plaintiffs son xxxx.)


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## nuac (12 Oct 2010)

Answer is "no".

Sometimes if there is a delay in finalising a Defence, a defendant might send the current draft, but that would only be for discussion purposes e.g. if a settlement meeting was proposed.


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## Jer1 (13 Oct 2010)

Thanks for your advice. I am not sure what i should do with this defence that was sent to me. i think i should write to the defendants to amend it or else just move forward and get it set down for trial.


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## onq (17 Oct 2010)

Normally I only see this when parties are in the process of agreeing a contract and as their agent I don't want to be seen responding to something in a manner that might be construed to be part of the contract - typically in conveyancing when I'm looking for information on statutory approvals, Opinions of Compliance etc.

ONQ.


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## a lawyer (21 Oct 2010)

OP if this relates to your earlier thread in respect of "without prejudice" correspondence I fear you may now be running your case yourself having dispensed with your solicitor's services.

if this is correct i'd respectfully suggest that you need legal advice, and representation.

a defence _might_ be delivered "without prejudice" to some other argument that the defendant feels they have which might defeat the case in total.  I am surmising here as have never actually seen a defence marked "without prejudice" on the document itself.  Whatever the situation, I would anticipate some technical legal argument coming your way.  You won't be able to deal with this by getting advice on the internet.


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## Jer1 (21 Oct 2010)

I am taking the case myself. Your post has been helpful. I would like nothing more than to employ a legal representative but all confidence and trust where the solicitor employed works for the client is gone. If i fail in court at least I will fail my way and not fail by being blaggarded by a solicitor and then be billed for it. I mean no disrespect to the legal profession at large with this post.


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## Eamonn T (19 Nov 2010)

I really think your running the risk of the Judge taking a dim view of you as being somewhat of a chancer and a blaggard who was afraid to use the sevices of a solicitor because either none would take your case, advised you to forget it or you didnt feel confidant you would win to start with. If your sick you see a doctor, If you have a legal issue of this size you certainly need to see a solictor!..


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## Jer1 (20 Nov 2010)

Eamonn T: I know u are trying to give sound advice but u have know idea what my case is about and what some people in the legal profession think they can get away with. As for the judge thinking i am a blaggard, I can present him/her with the evidence as to why I dropped the services of my solicitor. It will be very clear as to who the blaggard is. I am qualified in one of the top professions in this country and believe me I am not a chancer. I am very capable of bringing a lay litigation (which every person is entitled to do). 

Jer1


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## onq (20 Nov 2010)

Jer1

Are the other side trying to negotiate a settlement with you?

If not, then I think perhaps that the other side has availed of some clever legal person who may be trying to use some obscure loophole in the law against you by using this  unusual phrase.

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Some words to the wise; -

You say _"I am qualified in one of the top professions in this country and believe me I am not a chancer. I am very capable of bringing a lay litigation (which every person is entitled to do).__"_
I can't comment on your profession or its the usefulness of your profession in court - it might be totally irrelevant.
I qualified as an architect in June 1990 and am well-versed in contract, planning and building compliance law since that date.
I have acted as an expert witness for several clients and I have met both fools and wise men in the legal profession and out if it.
I have met some incompetent solicitors and acted for clients whose strategy was less than clearly planned, so I am reasonably experienced.

I might be capable of bringing a case in the District Court, but I never have - I have always engaged legal representation.
I would not even contemplate taking a case in the Circuit Court or the High Court as a lay litigant, certainly not to save money [see below].

This doesn't rest on the matter of money or whether or not you have a good _solicitor_ - the _Barrister_ acts for you in the Court and runs the case.
The real reason I prefer to use legal representation is their competence and the fact that you are stopped - by them - from making a fool of yourself.
Cases are things which its all too easy to become involved in emotionally - emotive outburts or smart comments in Court always backfire - with no exceptions.
Proper strategy and coaching before the case from the Barrister, including whether you should even give evidence, can be the making or the breaking of a difficult case.

On the matter of lay litigation I came across what many in the profession might see as a salutary lesson in this link.
I cannot vouch for it being current - I have other things to do today - but it sets the terms out pretty clearly;

[broken link removed]

In his deliberations the judge in reviewing a case brought by lay litigants repeated the earlier comments of the High Court Judge:

_"Obsession has replaced reason and invective has replaced argument"_

You should read the link above thoroughly.
It seems to confirm that a layperson cannot recover his own costs in court ["not measurable"], whereas a solicitor acting on his behalf can.
It also seems to say that a layperson who dismisses his solicitor and proceeds to court cannot recover the costs of their earlier advice even if he later relies upon it.

If the above link is current legal advice and if your primary motivation is money and you take your own case, you may be dealt a blow whether you win or lose.
If you lose, it may be bacause of your own lack of competence in legal matters and/or courtroom ability.
If you win, you may be unable to recover what could be considerable outlay on your part.
Finally, if you win you may not even get the costs to cover the original solicitors fees.

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Your rebutting of Eamon T for not knowing your case when you hadn't   expounded it and he was advising you on procedure and preparation made  you look inexperienced and unwilling to listen to advice.
Eamon picked up on the use of the word "blaggarded" from you, to the extent of repeating your spelling choice.
I think he was trying to point out that using terms like _"blackguard" _could end up with them being levelled against you.

Trust me,  if you react like that to someone trying to help  you here you won't last 20 minutes in the giving of evidence being questioned by a  competent barrister.
Your suggestion that one bad experience with one solicitor has soured  you against using professional legal representation for a court case is  one I find to be not very believable.

Might I also respectfully suggest that you don't use elements of  text-speak like "u" for "you" - small "i" for "I", predictive text  leading to "know" for "no", etc.

From:



_"4  Please write clearly and avoid using text speak or all  capital letters        Please take a little time to write your post  carefully.  Use complete sentences.   Use paragraphs for longer posts.   Do not use Text Speak._"

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So, in summary, lose the attitude - neither we on AAM nor the legal profession are your enemy.
Don't jump at conclusions and don't take offence if people disagree with you.
Neither officers of the court nor the unpaid contributors here are "yes men".
I strongly suggest you focus on getting the best advice and a good result.

ONQ.


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## nuac (21 Nov 2010)

Good post Ong.

As a solicitor of 40+ years experience substantially agree with same.

I recall the Supreme Court reference to obsession and invective in such cases, which, sadly, is often true.

I recall being in the Supreme Court when Judge Ronan Keane dealt very patiently with a lay litigant who was somewhat off topic.

A tip for practitioners - if someone arrives in your waiting room without an appointment with a big bag full of documents including correspondence copied to the President of Ireland, the Pope etc  - be careful.


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## onq (21 Nov 2010)

(hah haaaahhhh)

I have to confess to posting one or two things to the President in my time in the recent past, nuac!

Glad to see my opinion chimes with yours too, hopefully its more "birds of a feather" and not "fools seldom differ"!

ONQ.


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## SparkRite (21 Nov 2010)

What a post ONQ.
You obviously spent a lot of time composing same.
Well worded and well put.


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## onq (21 Nov 2010)

(bows) I try.

It seemed to draw together a lot of my own thoughts in the past year about going after people for money owed to me and the pitfalls I discovered if I intended to take the cases myself.

Happy to summarise it for the benefit of this forum.

ONQ.


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## Bronte (22 Nov 2010)

It is a very foolish person who would go into court without the services of the legal profession, particularly if they have the money to pay for such services. 

Nevertheless if you are going to do it I would advice you to go down the courts in order for you to really understand how they work. Particularly how the whim and mood of a judge on any given day can really go against you. 

Just because you yourself are 100% certain you are in the right doesn't mean you are. Why don't you outline your case at the very least and let us pick holes in it. It may change your mind on the certainty of winning.


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## aisling o'b (26 Nov 2010)

Excellent post ONQ. I'm usually only lurking but have great respect for you and the detailed advice you give on all range of matters; particularly, on those related to the built environment.


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## onq (27 Nov 2010)

Geez, I'm getting embarrassed now, LOL!

Thanks for de-lurking Aisling and please feel free to contribute your opinions to this or any other forum - like many things in Ireland at the moment, we depend on the kindness of strangers to make this forum what it is - hopefully they don't stay strangers for long, even if we occasionally disagree!

I started contributing to AAM because I could see the need for some people for professional advice with no outlay - just to get them over the first hurdle and seeing where they needed to go - there are few other bridges between lay people and getting charged €100+ just to find out you went to the wrong office!

For what its worth [FWIW] I try to give full comprehensive reasoning in support of my opinion not to show off my knowledge per se, but to get away from the "because I'm a professional and I'm telling you " school of advice.

Sometimes when someone sees the level of the advice given it prompts  someone with a different experience or knowledge to contribute to the  thread.
 I welcome this - because it means my knowledge is widened and better informed and we all learn something.

Full information from me allows people to research it and see if it stands up to scrutiny - sometimes this starts a feedback loop where people find an exception to the rule I quote or refer to.

My intention is to show all the self-starters on AAM - and this self-starting gumption is something we need _more of_ in this country not less of - that there comes a point where you've gathered opinions and you bring in the professionals.

You do not proceed beyond a certain point in a legal case any more than you would wired a house if you weren't an electrician or design a house if you weren't an architect.

You can research your preference for lighting positions or types - just as you can focus on a view of a location and even a style of house - but after that you owe it to yourself - not them - to bring in the professionals.

The OP is not the only one to whom I gave similar advice in the past week.

Despite the OP's assertion, at least one Judge in the Circuit Court has confirmed that while you may be entitled to represent yourself, this doesn't extend to a company of which you are a director - the company needs legal representation in such a case.

And no, the person I advised didn't seem to want to listen either - I foresee a slew of cases taken without proper representation ending in tears and a developing huge market for solicitors and barristers who slash their fees to the bone.

FWIW

ONQ.


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