I WROTE LOTS OF UNEDIFYING, AGGRESSIVE AND UNCOOPERATIVE LETTERS: LOOK WHERE IT GOT ME

One of aspects of the judgment in  McTear -v- Englehard [2016] EWCA Civ 487 that could easily be overlooked is the observations of Lord Justice Vos in relation to the nature of the  correspondence between the parties.

“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.”

THE CASE

The appeal concerned an application for relief from sanctions after witness statements had been served late and documents disclosed shortly before trial.   The defendant obtained relief from sanctions on appeal and a re-trial was ordered . The judgment was looked at in detail yesterday.  However Mr Justice Vos had something to say about the tone of the correspondence between the solicitors.

UNEDIFYING CORRESPONDENCE

  1. A heated email correspondence between solicitors preceded the exchange of witness statements and continued thereafter. We were shown that exchange in detail, but it was unedifying. Each accused the other of inappropriate behaviour in the conduct of litigation and of failing to answer the other’s questions. The argument seems to me to have had at its root the question of whether the documents that the defendants were disclosing late were in fact all or mostly documents that the claimants, as administrators and supervisors of BWL, ought themselves to have disclosed earlier in the litigation. There were, however, in addition, numerous satellite salvos about what relief from sanctions the defendants required, and numerous other ancillary matters.”

THIS HINDERS RATHER THAN HELPS THE PARTIES

  1. Instead, the solicitors on both sides engaged in an aggressive and uncooperative correspondence that served only to heighten their mutual suspicion to newly raised levels. Paragraph 41 of the majority judgment in Denton makes clear the undesirability of both a lack of cooperation between litigating parties and of seeking to take inappropriate advantage of the other party’s mistakes.”

A REMINDER FROM A PREVIOUS POST

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.”

THE “GOLDEN RULE” OF CORRESPONDENCE (AND INDEED OF ANYTHING COMMITTED TO PAPER OR COMPUTER

This goes to show the golden rule of correspondence:

“Do not write anything without remembering that one day it could be read out in open court . You could be called upon to justify both the content and the tone.”

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