Posts Tagged ‘Settlement Discussions’

Without Prejudice – What is the effect of this term?

In negotiations letters and other documents are often exchanged marked “without prejudice.  What does the term “without prejudice” mean, and what is the term’s effect in legal matters in British Columbia. This blog considers this.

The law is evolving and changing, and the exact application of this term or any other legal concept should be reviewed by a lawyer before it is applied to a particular circumstance.

A review of the definition of the term can be found this legal dictionary. In British Columbia, the term was reviewed in the case of Coombs v. LeBlond Estate.

In BC, as in most jurisdictions, the purpose of without prejudice communications, whether they be by discussions, in writing or in some other form, is to allow open discussion of settlement negotiations. If the matter proceeds to a hearing or adjudication, one or both parties don’t want the someone to say “I told the other side this is what they should agree to and they turned it down”.

Very often, discussions or letters marked “without prejudice” do not contain a settlement proposal.   Even if such a communication is marked “without prejudice”, it still may be admissible in court or another forum against the party who wrote it, or had their lawyer or representative write it.

Sometimes discussions or letters not marked “without prejudice” may be seen as seen as privileged and not usable if it contains terms of settlement.

After reviewing the relevant cases, the judge In the Coombs case, at paragraph 23, finds that in order for a communication to be without prejudice, such that it cannot be used in court or against the parties, the communication must have the following two conditions:

1 – a dispute or negotiation between two or more parties; and,
2 – terms of settlement offered.

With respect to the first term, some dispute must exist. There does not need to be court proceedings, but there should be grounds to commence a court proceeding.

With respect to the second term, there must be some terms of settlement offered. The other content of the communication can be the basis of the terms, or an explanation as to who the facts are seen or perceived.

If terms of settlement are missing from the communication, then it might be possible to use the communication against or for one of the parties.

My Adjuster Suggests I don’t Hire a Lawyer

I guess it’s not too surprising, but this is the most read article on this blog.

Here are the reasons insurance adjusters suggest you don’t hire a lawyer:

1.    It will drag things out

2.   This is our final offer and we won’t pay more

3.   Why pay a lawyer 1/3 of the claim when we are willing to give you the full amount without a lawyer

4.    You don’t really want to go to court

If there are other reasons an adjuster gave you, please let me know so we can update this blog

It will drag things out

It is true that with a lawyer, your claim will take longer to settle. Once you settle your case you can’t go back for more, so the lawyer wants to make sure that you are aware of all the different claims you can make.

A lawyer’s biggest concern is that if you don’t recover as expected or suffer a relapse that is from the injuries the collision caused or aggravated. As such, a lawyer will want to ensure that there has been proper investigation, and that you are aware of the full nature and extent of the injuries you suffered so that you are fully informed when if you accept a settlement.

To do this, it’s best to review how the collision occurred, the medical information, especially if there are pre-existing conditions that were made worse, or if you are not fully recovered.

This is the final offer and we won’t pay more

This may be the case, though it’s unlikely. If you are fully recovered, then a lawyer can advise if the amount seems fair.

An adjuster needs documents and reports to justify the amount they pay. A lawyer can make sure that the case was properly assessed with the proper documentation.There are many instances where ICBC has paid way too little. One example is shown in the case of Doan v. ICBC.

Why pay a lawyer 1/3 of the claim when we are willing to give you the full amount without a lawyer

Most lawyers will give an initial consultation for free or a small fee. If the amount seems fair, many lawyers do not expect you to hire them.

Settlements with lawyers usually exceed the amount offered by the adjuster, even when the fee is taken into account.

Lawyers who do ICBC work on a regular basis have lots of examples of getting many times more than the amount offered by ICBC to the claimant.

Lawyers do not always charge 1/3. Some charge different rates depending how far the case progresses. Others charge a percentage that decrease as the amount of the settlement increases.

So even if you end up not hiring a lawyer, you get the peace of mind of knowing all your bases have been covered

You don’t want to go to court

Less than 5% of cases go to court. By seeing a lawyer doesn’t mean that your case will go to court. It means that a lawyer can assess your case to make sure you are aware of all you can claim for, and to make sure that you have all the information you need to make an informed decision as to whether you should settle.