“AGGRESSIVE CORRESPONDENCE” AND EFFECTIVE LITIGATION: ARE THE TWO SYNONYMOUS OR DIAMETRICALLY OPPOSED?

There is an interesting report by Chloe Smith in The Law Society Gazette “Solicitor reprimanded for email calling opponent a “plonker””.  The comments that follow that article are equally interesting with the usual mix of wry and witty observations.  The requirements of professional courtesy in correspondence are, of course, paramount. However I wanted to consider the question whether “aggressive correspondence” is the same as effective litigation. I suspect the two are almost diametrically opposed.

“Take the heat out of the correspondence. The court will not be impressed.”

AGGRESSIVE CORRESPONDENCE IS NOT HELPFUL AT TRIAL AND AT COURT GENERALLY

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.  There are, however, examples, where correspondence has led to indemnity costs against the corresponding party. So in the Excalibur Ventures case [2013] EWHC 4278(Comm) Lord Justice Christopher Clarke observed.
  1. I have been spared sight of much of the 5,000 pages of inter solicitor correspondence. It is apparent to me, however, from what I have seen that some of the correspondence from Clifford Chance has been voluminous and interminable, in some circumstances highly aggressive and in others unacceptable in content. These have included ill-founded allegations of criminal conduct in the form of insider dealing, misleading the market and misleading the public about the relationship between Gulf and Texas. 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.
  2. It is apparent that the Wempens themselves were in no way averse to damaging Mr Kozel personally: see the injunction to “bury the bastard” in the email dated 24 November 2007, paragraph 938 of my judgment. Further, it appears to me that part of the Wempen plan was to do everything that might in one way or another drive Gulf to settle.
  3. It is not suggested that Clifford Chance did not act in accordance with their instructions and I infer that Excalibur was perfectly content with the belligerent tone, volume, content and repetition of the correspondence and the war of attrition of which it formed part, and with the zeal of Mr Panayides in pursuing it.
  4. I do not suggest that the approach of Gulf and its team to these proceedings has been wholly blameless and I am aware that there have been criticisms, some of them judicial, going in the opposite direction, including on occasion the award of indemnity costs. What, however, I am concerned with at this juncture is the overall approach of Excalibur to the conduct of this litigation, which is as I have described..”
  • The communications between Excalibur’s lawyers and the Gulf legal team on occasion completely overstepped the mark. To do him credit Mr Panayides accepts that on occasion that was so. During the course of the trial an egregious example was to be found in a particular letter of 17 January which he understandably says he regrets.
  • The question of the scale of costs is not to be determined by one letter or even more than one, but the manner in which the case against the defendants, of which the correspondence forms part, was promoted is one of the factors to be taken into account with many others in deciding where justice lies.

The nature of the correspondence was one of the factors that led to indemnity costs being ordered.

More recently we have the observations of Mr Justice Edwards-Stuart in Gotch -v- Enelco [2015]
  1. Whilst English law is an adversarial process, that goes to the issues in the case: not to every aspect of the procedure. Parties to litigation, in the TCC at least, are expected to conduct that litigation in the manner that is most expeditious and economical. Bringing the right issues to trial in the most economical fashion, and taking steps to ensure that the costs are kept at a level that is proportionate to what is at stake, is to be at the heart of the process.

(If anyone can show me a decision where aggressive correspondence has had a positive impact on a trial or hearing I would be glad to see it).

A HELPFUL GUIDE

There is a very useful article by Elizabeth Metliss in the New Law Journal “The view from the bench”. She summarises the view of Mr Justice Burton given in a talk to her firm in relation to how judges perceive correspondence.

“It would seem that if law firms are seeking to invest time, energy and costs in protracted and over the top correspondence, with a view to having the court take notice, they should not bother. According to Burton J, it is a waste of time, costs and paper.”

ESSENTIAL ADVICE FROM KRISTIN

After this was first posted Kristin Heimark sent me a copy of her post on LegalWeek “Taking out the heat – key points to avoid in legal letter writing.”  With Kristin’s permission (indeed with her blessing) I summarise the main points below. (This is no substitute for reading her original article though).

  • “Do not accuse people of crimes. It only winds them up.”
  • “Don’t threaten people. It only makes them want to call your bluff”.
  • “Don’t use multiple Fonts. AND DON’T USE BLOCK CAPS” (sic).
  • “THIS CLAIM IS FRIVOLOUS, VEXATIOUS AND WHOLLY MISCONCEIVED!!!!” doesn’t scare anyone.
  • “There is nothing more tedious than reading an exchange of ‘handbags at dawn’ correspondence that doesn’t take the case anywhere. The judge will want to shoot both of you.”
  • Don’t fall in love with the word “disingenuous” 
  • “You can stand your ground and be dispassionate at the same time.”
  • Some of the best advice she was given “Take the heat out of the correspondence. The court will not be impressed.”

THE ROLE OF AGGRESSIVE CORRESPONDENCE IN (NOT) PERSUADING A PARTY TO SETTLE

Has any litigator reading this ever told a client to settle because they have received a rule or aggressive letter from the other side?  If anything such correspondence only hardens the response and makes settlement less likely, thus adding to the costs, delay and general anguish of litigation.

BUT I HAVE BEEN WRITING AGGRESSIVE LETTERS FOR YEARS…

Matters are probably being resolved despite such letters rather than because of them.  Further this can only be said with a degree of confidence if you are happy for those letters to be read out in open court and for your clients to be cross-examined on them.  Cross-examination on correspondence is often extremely effective, particularly because witnesses are reluctant to agree to the strident or aggressive tone of some letters or emails ostensibly written on their behalf.

SHOULD CORRESPONDENCE THEN BE SUPINE?

I am not advocating that letters cannot be firm, or even assertive.

  •  However a rude or aggressive letter is counter-productive.
  •  The cardinal sin is that lengthy aggressive correspondence is mistaken for effective litigation.
  • Time that could usefully be spent on preparing and assessing evidence and preparation for trial and/or settlement is wasted by the preparation of vituperative letters.
  • Those letters, in turn, often hamper the settlement process and (so far as I can see) actually harm  the client’s case.

Put bluntly (but not rudely) there is little point in attempting to argue a case in correspondence, particularly aggressive correspondence. This rarely, if ever, gives rise to a change of mind and, as we have seen, can be harmful to the writer’s case.

USEFUL LINKS

The Law Society of British Columbia have some useful guidance in Top Complaint against lawyers is rude or uncivil behaviour.

4 comments

  1. linda burke · · Reply

    \hi where it states see all comments at the end I cant f ind them? thanks

    Date: Thu, 20 Aug 2015 00:23:04 +0000 To: elleburke1@hotmail.com

    1. Linda, they are at the end of the Law Society Gazette article. Click on the link to the article and scroll down to the bottom. (At least they are there when I click on it). Regards, Gordon.

  2. I agree with you about aggressive or over-the-top correspondence. But correspondence remains the only method for persuading the other side that they are wrong, apart from at trial. How else can issues of fact, law, witness credibility, litigation risk and costs be articulated to explain how the trial judge is likely to decide the case? How else can each side fully understand how the other sees its own case, which is presumably how they see those aspects working together in the mind of the trial judge? Mediations are not the place for detailed consideration of documents, legal submissions or case law. Giving the other side the materials and expecting them to come to the relevant conclusions on their own is unlikely to be as effective as explaining carefully what those material mean (or are perceived to mean) in the overall context of the case.

    The pre-action protocols encourage detailed articulation of all key aspects of the case pre-litigation, followed by detailed responses with a view to sharing information and avoiding litigation. I would argue that the obligation to explain and debate the case with a view to narrowing the issues (and only bringing the right ones to trial) continues against the backdrop of the proceedings; arguably that is part and parcel of the duty to further the over-riding objective. How can the issues be narrowed or settlement engendered without carefully reasoned correspondence which, in a multifaceted case, will inevitably result in long letters?

    Surely it is useful when considering costs post-trial to be able to point to a letter written 2 years ago raising an issue which has now been decided in favour of one’s client at trial to underpin a submission to the effect of “we told them that two years ago, they carried on and we have been proved right, so can we have our costs of that issue please?”

    To my mind correspondence is one area where judges occasionally fail to appreciate how litigation is and indeed has to be conducted by solicitors. There will always be egregious cases, which cannot be justified, but I fail to see a viable alternative way to persuade the other side that they are wrong and should not go to trial, or to narrow the issues before trial. It is any aggression that is the problem, not the length of the letters. I therefore take issue with the general proposition that “there is little point in attempting to argue a case in correspondence.”

    Anton Smith

  3. Unfortunately solicitors think that such correspondence impresses the client and not infrequently it does seem to have that effect. It also allows solicitors to rack up huge costs by a bit of letter writing / follow ups / taking new instructions etc. This propensity has been in turn amplified by the tendency of some solicitors to write directly to the Court or at least send a copy (functionally the same thing). The Court in turn then says such correspondence was only looked at in an administrative capacity hence it could not possibly be prejudicial. In due course the same correspondence is frequently just stuffed into the bundle without being properly exhibited. I have seen this type of thing have absolutely lethal impact on even rudimentary notions of fairness even at the Court of Appeal. Presumably litigation means preliminary correspondence has by definition failed. Continuing the process thereafter is in my submission simply designed to prejudice the other party. The Courts should resolutely set their face against it and deny all costs. Then perhaps solicitors might desist.

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