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  1. Hi Andrew,
    Hope you are well.
    I am coming across an increasing number of cases whereby the third party insurers are offering a “free car”, ie an intervention letter, however the letter is usually headed in bold print “Without Prejudice”. I cannot see how the letter can be construed as a firm offer of a free car when the letter is clearly marked in this way.
    It seems to me that the third party insurers want to have their cake and eat it. Surely if the letter is marked in such a way, this cannot be used in evidence at a later court hearing.
    I would welcome your thoughts on the matter.

    1. The “Without prejudice” rule is a rule of evidence which excludes
      communications aimed at settlement of a dispute, from being capable of production as evidence in court. For a letter to be without prejudice rule to apply, there must be a dispute, negotiations genuinely aimed at settlement of the dispute and the court deals with substance rather than form: whether or not a letter is marked “without prejudice” is not definitive as to whether the without prejudice rule applies.
      The courts will always consider substance over form and conduct an objective evaluation. I suspect the insurance company is simply misusing the term: there is no reason why they would want to keep the offer secret. But you are entitled to take it at face value and ask for any such letter to be excluded from the evidence by the court.

  2. Dear Andrew

    I wonder if I might ask you a question? I would be extremely grateful. The defence always say that Clark and Ardington provides that the engineers fee is irrecoverable as a matter of law. Is there not still an argument that the engineer fee is recoverable on the basis of a contractual clause in the credit hire agreement? Specifically, I note that there is no mention of a contractual clause in Mr Lagden’s and Mrs Clark’s claims under the “Helphire” scheme.

    1. I doubt it. The contract might provide that the credit hire agreement will give him any number of goodies, but they wouldn’t necessarily be reflected in the measure of damages, which is the tortious measure for loss of use. However engineers fees are routinely recovered as solicitors disbursements in litigated cases.

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