Terms & Conditions

[Julian Hobson]

I have an appeal at tribunal.

L/L is target for recovery, he has a solicitor and barrister representing him. At the initial hearing they present further evidence and it clear to the chair that an adjournment is necessary to list for more time as only 30 mins allowed. We are directed to repond to the further submissions.

Shortly before the period to respond comes to an end we get a letter from the solicitor headed “without prejudice” offering to repay 50% of the OP of around £5000.

I decided to instruct our own solicitors in this appeal (doing that now) and asked for an extension of time and included two letters (one of which is the Without prejudice letter) with my request to the tribunal.

The tribunal have obviously sent a copy of my request to the solicitor as I have now received a letter from them that questions in very strong terms my motives for including that letter with my request.

My thoughts are that the “without prejudice” letter has no effect. There is no dispute between the LA and the L/L that can be resolved by negotiation. There is no abuse of legal priviledge. The tribunal are entitled to access to all communications as though they were the authority.

If we were pursuing this debt in the County Court the position might be different in respect of the Without Prejudice letter or any other prior negotiations but those principles don’t apply here.

Any thoughts on this thorny issue?

[Anonymous]

I would have sent the letter to TAS as once referred to them I consider them to have the judgment of whether or not the authority has acted correctly. Unless of course the authority decided to lapse the appeal when looking at further information provided (would still be forwarded to TAS). The authority cannot lapse half of the appeal and accept 50% – it either stands by it’s decision to recover the overpayment, or not, however, it may be able to recover half – I am not sure? however, I would forward all further correspondence to TAS.

[Anonymous]

Surely offering to repay 50% is, esssentially, agreeing that the o/p IS recoverable.

[Anonymous]

…which is exactly why the solicitors are getting so hot under the collar.

I’d have sent it to TAS as well…publish and be damned

[Anonymous]

I dont agree that a without prejudice letter implies that the landlord is agreeing that the overpayment is recoverable.

If he is employing a solicitor and a barrister, their fees could amount to more then the 50% offered, and so the offer is a mere expediency as he could not recover the costs from the LA

[Anonymous]

I don’t follow your argument, Stainsby.

If the overpayment is, say, £1,000, and he offers the LA £500, you seem to be saying that he wants the other £500 to pay his legal fees. Which means he is tacitly agreeing that the entire £1,000 is recoverable.

Either way, I think many people see any kind of out of Court settlement as at least a partial admission of culpability.

[Anonymous]

They must think they have less than an even chance of winning, or they wouldn’t take those odds.

But the Tribunal shouldn’t be daft enough to attach any weight to the document – for the simple reason that it does not contain evidence of the facts down to the date of the decision.

There is no harm done now that you have gone ahead and sent the document – it is up to the Tribnunal to decide what is relevant (and I don’t think this is relevant to the question whether the overpayment is recoverable). In fact, you could even argue that all documents that could remotely be seen as relevant by the Tribunal should be provided in the interests of justice – it is not for the LA to gatekeep the appeal papers, clear conflict of interest, temptation to bury damning evidence, Tribunals are lawyers who are trained in the art of evaluating evidence and disregarding that which is irrelevant etc etc … I think I would take that line with the solicitors. But I would probably also not have sent this document to the Tribunal, because it is really a sneak preview of their negotiating stance if and when the overpayment is found to be recoverable – it doesn’t have any bearing on the matter under appeal which is whether the overpayment is recoverable in the first place.

Still, no harm done in my view

[peterdelamothe]

I agree that you must supply the doc to the Tribunal; it is clearly material. Also that the Tribunal should ignore it. I think the reps are mistaking what the Tribunal is there to do.

However the LA is clearly at liberty to accept a deal and is at liberty to write off amounts subject to auditors arrangements etc. I would guess that the barrister has said that they have a reasonable case but might easily “lose”. In these circs, the solicitor has almost an obligation to try to come to some form of arrangement or agreement.

Over the years, I have received many such offers of deals, from landlords and claimants involved in possible fraud. In some instances the person just wanted to get the matter finalised. If the offer is reasonable, the law is complex and unclear and mat take years to resolve then I see no reason not to accept. Proven fraud may be an exception though.

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