Can any legal experts offer me any advice re EA contract....?

neverdespairgirl

GDB2222 wrote: »

Why? So that all concerned can have a stressful time. How many court cases have you conducted?

As someone who has conducted an awful lot of court cases, I'd go some way to avoiding one myself (-:

neverdespairgirl

FireWyrm wrote: »

I have the greatest respect for GDB2222 since he is obviously very knowledgeable in this area, but I have to disagree with him about negotiating any settlement.

I *think* you are home and dry. Most on this board think so too and here's another opinion backing that thought up. It's entirely up to you, but if it were me, I dont think they would get very far in court and you are in the better position.

I wouldn't go as far as to say 100%. There is a chance the OP could lose. Not a high chance, but there is always an element of litigation risk. Plus the stress of court hearings, even if you win.

WebGuru

I would be surprised if this would actually go to court.

moneybunny123

To be honest, I wouldn't let it reach court. My costs of a solicitor, etc, will add up to more than what the EA is seeking. What worries me more is that if I stand firm, will the EA retract his 50% offer and then decide that because I'm also standing firm he'll come after the full fee.

If he DOES do that, I may have no option but to let him take me to court as we're then talking almost £4k.

It's my understanding, though, that if it goes to Ombudsman, the EA MUST stand by their decision. And from what they've told me, it's likely to go in my favour.

I'm not sure if the offer had "without prejudice" written on. What difference does this make? What does it mean?

FireWyrm

Without prejudice is legal speak for an ad-hoc contract. Basically, they have to stand by it and they cant change their mind if you accept their offer. I think it also has something to do with no infringing rights absolute or implied, but the legal beagles on here can give you the actual definition. In laymans terms, it means that the letter is their offer and if you accept, all parties are bound by it. They cant take you to court later and say 'oh but....'

Going only by what you have told us, my vote would be for #5 with the option to fall back to an offer of 25% if it goes badly. The problem is, by counter offering, you are at least acknowledging that there might be some merit to their case and this could go against you in the long run. It's a game of poker. If you counter offer, it's tantamount to saying 'yeah, ok, I was kinda trying to do you out of your money, but here's some cash to get lost', whereas if you stand firm, you are denying they have any legal right what so ever, so let's test this in court if you think you're hard enough....

From what has been said here and GDB seems to be the only gainsayer, we dont think it will get to court, but you need to resign yourself to the risk that it might and that you might lose. That said, what's the worst that could happen? You have to pay the full fee anyway? What are we talking here? A few thousand? We're not talking litigation where millions are at stake, so if you are a betting person, it might be worth the punt on the good chance that it will cost them more to pursue it than they will get back. It's a game of chicken and while we can spectate, only you can decide when to blink.

GDB2222

Without prejudice means that the document cannot be produced in court. So, you can make a without prejudice offer to settle, and the other party can't produce that as evidence in court.

The trouble with going to court in this case is that the judgement is almost bound to be all or nothing. Either the EA fee is payable or it isn't. So, there's a high risk for both parties. The court fees for a case worth £4k will run to a few hundred £££, payable by the loser. If you lose, you will be liable for interest at 8% on the £4k. Apart from that, you are not liable for the other party's legal fees, and they are not liable for yours. Consequently, these cases tend to be dealt with by the parties themselves, without hiring a lawyer, or with only minimal legal help.

Clearly, if you can resolve this matter through the Ombudsman route, that is the way to go. However, that could take months of faffing about, and it might be worth making a modest offer to settle first, just to get it dealt with.

sonastin

FireWyrm wrote: »

Without prejudice is legal speak for an ad-hoc contract. Basically, they have to stand by it and they cant change their mind if you accept their offer. I think it also has something to do with no infringing rights absolute or implied, but the legal beagles on here can give you the actual definition. In laymans terms, it means that the letter is their offer and if you accept, all parties are bound by it. They cant take you to court later and say 'oh but....'

^^ This is not what without prejudice means. A without prejudice offer is not binding, it can be withdrawn at any point.

FireWyrm wrote: »

The problem is, by counter offering, you are at least acknowledging that there might be some merit to their case and this could go against you in the long run.

^^ This is what without prejudice is about. If you make an offer without prejudice, the other party can't use that offer in court. So they can't say "look, she tried to offer me 25% so she obviously thinks that I am right". A without prejudice offer is effectively "I don't think that you have a case but I'm don't wish to fight you over it. I am prepared to pay you xxx to make you go away".

If their offer was without prejudice, you can't go to the courts and say they knew they didn't have a claim because they were willing to take 50% - they were just saying we know you owe us all of it but it will cost us more to fight for it so we'll take half. If you don't want to pay half, we'll sue you for the full lot.

For what its worth, I think their case is extremely weak and it is not worth their while taking it to court and I think that they know that too. It is your gamble to take though - we can pontificate all we want as it is not our money at stake!

WebGuru

any update on this post OP?

RabbitMad

This reminds me of a thread on the eBay board.

The OP had sold a carvan that the buyer claimed had damp. The Buyer sued and every single reply said the buyer didn't have a leg to stand on, tell them to take a hike, buyer beware etc.

You can see where this is going can't you?

The OP lost and it cost them the entire money they had received from selling the caravan in the first place.


I think the OP's case is fairly strong but I would be inclined (like GDB222 to offer a with out prejudice settlement of between 10% and 25% stressing in the offer that their case is without merit but to avoid litigation and stress you will pay them that)


As an aside I'm sure I read somewhere that all correspondance in the aim of settling a dispute is automatically without prejudice and basically shouldn't be able to be used in court except for the costs argument. That said without prejudice documents do accidentally get left in court bundles and exceptionally documents marked without prejudice can be used in court to bolster your case with the judge's consent.

moneybunny123

WebGuru wrote: »

any update on this post OP?

The update so far is that the EA has requested a meeting with us (which we've agreed to) in an attempt to stop us from taking it to Ombudsmen.

It's been over two months now since completion and we have no court summons.....hmmmm....could it be that the EA knows they wouldn't have a leg to stand on.....?

Incidentally, this request from them to have a meeting came almost three weeks after I emailed them telling them that I would either pay them 25% and that be an end to it, or I would take it to Ombudsmen and let them decide. Three weeks!! I'd assumed they'd given up.