When I’m not being a litigation lawyer, I play bass guitar in a local country/blues/Americana band (“heartwarming soulful rock and blues – an instant hit” – Barnet Post Sept 2021). When I’m doing that, I can adjust the tone by various means, mixing pickups, hand position articulation and equalisation. This hopefully corresponds to the mood of the song. Varying tone is helpful. I try to achieve this in litigation as well.
It seems that not everyone does. The tone of much litigation correspondence is often one of outraged offence: your client is the repository of all virtue and the “other side” is guilty of extreme bad faith. This can sometimes be hidden in mild language: the description “unhelpful” often covers a multitude of sins in its passive-aggressive use and can easily be understood to mean that the recipient party is guilty of egregious misconduct.
But the prevailing tone of much communication with solicitors acting for an opposing party is one of extreme crossness and irritation, as if they are deliberately setting out to annoy you, make your life difficult and more importantly prevent the court from doing its proper job. And so must be punished, in costs at the very least.
The occasions where a court has been influenced in its judgment by aggressive inter-solicitor correspondence are rare indeed. The eminent legal blogger, Gordon Exall states: “I have been unable to find a single case where a judge has found that aggressive correspondence, and angry letters, from a party has persuaded that judge that the particular litigant was in the right”.
And there have been many instances where the judiciary have deprecated such material in no uncertain terms. As Lord Justice Christopher Clarke said in Excalibur Ventures LLC v Texas Keystone Inc. and others [2013] EWHC 4278(Comm)
“Whilst interminable and heavy-handed correspondence is becoming a perverse feature in some commercial litigation, it is not in any way to be accepted as a norm and parties whose solicitors engage in it should not be surprised if, in a case such as this, they end up paying the costs on an indemnity scale.”
Yet solicitors persist. Possibly, the benefits of impressing the client with your commitment to their cause are perceived as outweighing the that the other side might laughing at you behind your back and the court might criticise you down the road. Solicitors don’t get much chance to show their chops and clients might seem to like the brief high that an aggressive piece of correspondence directed at their deadly enemy might bring. Live for the moment and bask in it.
Now, there may well be occasions where the high-handed ultra-aggressive solicitor tone, threatening that matters will be drawn to the attention of the court and raising the possibility of indemnity costs and all the usual stuff, is entirely appropriate. That might be the case if your client is ultra-respectable, has a cast iron legal position and the counter-party is clearly acting in bad faith or at least unresponsive. But there are risks even here.
In responding to arguments raised by the “other side”, there is room for a range of nuanced response, between:
why is this lying liar lying to me?
and
do the points raised have any objective validity and can they be disposed of rationally?
You can be very cross. Alternatively, you can provide a low-key demonstration of the error of your opponent’s ways and the unreasonableness of their stance. Sometimes you may be able to do both.
The response must hit the appropriate spot on the spectrum to influence all those who need to be influenced. Which is not just your client. Subtlety and understatement can sometimes be highly effective.
It may not seem it at the time but when everything is taken together over a period of time, and referred to in court, or possibly affects the judge in a subliminal manner, the client might be grateful for a measured variation in tone.
