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Open Offer Strikeout request (wavering privilege)

  • Newlife55
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24 Aug 20 - 30 Sep 20 #513815 by Newlife55
Topic started by Newlife55
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Last edit: 30 Sep 20 by Newlife55.

  • .Charles
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25 Aug 20 #513818 by .Charles
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Firstly neither party has any right to refer to a without prejudice offer in the final hearing. The offer has no status before the court and it does not assist the court to refer to it.

Secondly, is your open offer affected by the reference to the without prejudice offer? Taking the reference out, does the offer change? To me a usual open offer says this

"Here is my open offer",

whereas your says:

"Here is my open offer - do you remember the without prejudice offer you made, it's kind of like that but different isn't it?"

Now, I've never heard of a party applying to strike out an open offer. It seems disproportionate bearing in mind the Court and the officers of the court (solicitors and barristers) are meant to act in a way which is proportionate and which maximises the use of Court time whilst also being fair to other Court users.

If the other side did make the application, it could go a number of ways:

(1) it could succeed, you would have to withdraw and reissue your open offer, you would have to pay costs and lose the protection of your open offer

(2) It could fail as the trial judge would only consider open offers at the end of the trial and could just ignore the reference to the without prejudice offer. Depending upon how the court deals with that application there could be costs ordered again neither or either of the parties.

(3) The court could deal with it on paper (without a hearing) and either grant or refuse the application. In that case there could be costs ordered against either party depending upon how the application is decided.

(4) Something else.

You refer to practice direction 4A. Part 4 and the practice direction refers to striking out a statement of case. An offer is not a statement of case in my mind. I certainly don't think Part 4 was intended to be used in the manner which you suggest. However, family law is very flexible and when things become litigious the results will vary from case to case.

A family judge might be pragmatic about any application and make an order which benefits both/neither party e.g. the open offer be withdrawn and removed from the trial bundle, no order for costs.

As you have legal representation and they appear to be okay with the terms of the offer then you pay for their advice and should perhaps stick to it.

However, going back to my second point above, is there any benefit to referring to the without prejudice offer? Is it worth the risk of dealing with an application (which adds time and costs to both parties)?

Charles

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25 Aug 20 #513827 by Newlife55
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Thank you Charles for your incredibly helpful response. An outline of possible scenarios was exactly what I was hoping for. I have paid for the legal advice on my Open Offer. After reading all the correspondence they were content with referring to the previous offer in that way. I haven't paid them or asked them to consider this strikeout yet. So I will double check with them that their advice still stands.

For further context, I believe it is important to me to refer to their offer.

We had both made offers to each other using the same lump sum amount to remove my interest in the FMH (the only asset). The deal didn't get done for other minor reasons.

I made a subsequent Open Offer addressing the minor points of contention and maintaining the same lump sum offer. They then rejected it.

They are now denying the lump sum amount they offered had ever existed and making contradictory statements which I assume is to only bolster her needs argument.

I want to justify why I came to the lump sum figure in my Open Offer (which is actually quite a conservative ask, rather than the typically optimistic ask for an Open Offer), because it's essentially offering what they asked for.

I assume the points laid out in your post still stand in light of this extra context?

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25 Aug 20 #513835 by .Charles
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Unfortunately no matter how you put it, a without prejudice offer has no status in front of the Court* and it would be perfectly proper for a judge, when presented with a document headed ‘without prejudice’ to say “the court does not recognise this document”.

Your open offer should stand on its own merits. Either it is an offer that should have been accepted as you obtain a better settlement at trial or it is not. If it is any more complex than that, the message which your offer is meant to convey may be diluted.

I don’t offer this as legal advice as you already have that. What I do know is that you should as much as possible to prevent costs from being incurred as this will reduce the joint matrimonial pot.

You should perhaps ask your legal advisors how much it will cost to oppose an application to strike out your open offer (or whatever they wish to call it) and what are the risks of losing, I would wager that the answer will be non-committal.

Charles

*provided that the without prejudice correspondence had been correctly applied which is a painful technical explanation but from your post I would say the offer is correctly headed.

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