Hi, can anyone tell me what the advantage/disadvantages of making an open offer prior to the FDR hearing.
I am in a situation where "without prejudice" offers have been made however i am concerned with the amount of time it takes for stbx to respond to any offer made.
First proposal from me following first appointment took five weeks to get areply back, when she did reply i responded within days and now i am back to waiting for her response on current proposal which was put to her two weeks ago. FDR is in a few weeks so time is running short.
Do "open offers" stop all the messing about which i feel she seems to be doing?
I just want to conclude matters.
So am I right in thinking that a judge at the FDR will not see the without prejudice offer? Which, if it is a generous offer, is a shame as the judge won''t see ath that point that you have tried to settle? Doesn''t sound right or fair....
The FDR hearing is actually conducted on a without prejudice basis so all offers, open and without prejudice, are disclosed to the court.
If an agreement is reached at FDR which the court accepts, the without prejudice cloak falls and the court can made an order which is open and binding.
When the matter goes to final hearing no reference to the events of the FDR can be made except those that are ‘open’ such as Directions for disclosure, statements etc.
*Without prejudice offers*
The whole point of without prejudice offers is to allow a shortcut to settlement. Imagine you owned a health food shop and there was a burger van outside just after Christmas. You could contact the council to check permits and eventually move the van on, possibly with the assistance of the police. This all takes time.
Alternatively you could have a quiet word and offer £50 never to darken your doors again. That action does not prejudice your legal position as you can still seek resolution through the council and the police. The payment would be faster and whilst not permanent, it would allow you to capitalise on the post Christmas efforts of people to combat their indulgence by being healthy. Everyone’s a winner.
In financial proceedings, a without prejudice offer is a device to obtain a settlement by consent without being held against the offeror at a later date.
For example, if a separating couple both wanted to remain in the property and each offered the other £50k – their half of the equity - there would be deadlock. To break the deadlock, one party might offer £60k on a without prejudice basis. This does not mean that it is acknowledged that there is £120k equity or that one party deserves more than the other - it is merely an attempt to break the deadlock by offering some of their share to obtain exclusive ownership.
If the offer is not accepted, the parties go to final hearing and the court may then order a sale of the property and an equal division of the net proceeds of sale. However, legal fees need to be paid first (along with costs of sale and estate agents fees) therefore the net proceeds of sale might only be £80k so each gets £40k each – less than that which was offered by each party.
If the without prejudice offer had been accepted, the offeror would be able to remain in the property but still have the same money as though the final hearing had taken place. The offeree would move out of the property but be £20k richer than would have been ordered.
This is a fairly simplistic view but reasonably easy to follow. Some without prejudice offers are beneficial to both parties, others are meant to test the water to see how far apart the parties are and other offers are meant to be kept away from the court as they are just plain unfair.
*And back to the FDR again*
The FDR can address some of these issues as an FDR judge should make crystal clear to the parties what is and is not a reasonable offer. It should be a reality-check for stubborn people who refuse to take or accept legal advice.
Charles thank you so much for the analogy and explanation, I totally get it now. So if someone has had a more than generous offer that they haven''t accepted (come the FDR) the judge will definetly have seen the Without Prejudice offer and tell the other side that it is something they should be thinking about accepting?
It''s just that I feel this divorce has really turned into a ''war of attrition'',and because so far I have backed down on everything, I think they are holding out till the last minute ie the FDR and seeing what happens. Does this sound like a common scenario? It''s just the offer they have had is more than generous and I am not prepared to give anymore.
Thanks for your time Charles.