COURTESY, CONDUCT AND LITIGATION: A ROUND UP OF THE POSTS
Last week I set out the responses on Twitter about professional courtesy and conduct. This is a good opportunity to recap on the four posts on this subject.
“AGGRESSIVE CORRESPONDENCE” AND EFFECTIVE LITIGATION: ARE THE TWO SYNONYMOUS OR DIAMETRICALLY OPPOSED
This contained extracts from the Excalibur Ventures case  EWHC 4278(Comm) Lord Justice Christopher Clarke observed.
“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.“
He went on
“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 VIEW FROM THE BENCH
That post also featured an extract from an 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.”
This looked at the case of McTear -v- Englehard  EWCA Civ 487 that could easily be overlooked is the observations of Lord Justice Vos
“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.”
“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.”
BE CAREFUL WHAT YOU WRITE: THE SUPREME COURT MAY READ IT ONE DAY (AND IT MAY END UP ON A BLOG SOMEWHERE…)
This looked at the aspects of the judgment in Times -v- Flood  UKSC 33 that did not made the headlines.
” Secondly, the correspondence. Although we were taken to the correspondence in a little detail by counsel on behalf of each party, it is unnecessary to consider it in any detail. As is not uncommon in such correspondence, there were passages emanating from each side, which, at any rate with the benefit of hindsight, would have been better omitted. More importantly, I can see nothing in that correspondence which assists TNL’s challenge to the Judge’s award of costs. I accept that some people might characterise the attitude revealed by Mr Flood in that correspondence as intransigent, but I consider that description would be unkind. TNL were adopting a very tough attitude in the correspondence; some people might use a more critical adjective.
71. Thus, as in the open negotiations alluded to in paras 16 and 17 above, TNL was making it very clear in the correspondence that it was maintaining its plea of justification and would be taking steps to find witnesses to support that case. TNL’s plea of justification would have involved showing that there were grounds to justify a police investigation, and it was a plea which was of course eventually abandoned after TNL lost on meaning. In addition, TNL suggested that Mr Flood would be likely to be financially ruined by the costs if he proceeded with his claim and lost, whereas TNL could easily take such a risk if it lost; the Judge not unfairly described TNL’s approach as involving “unsubtle threats” (para 20). It is fair to emphasise that nothing said on behalf of TNL in the correspondence was improper, but, if the correspondence is to be relied on in relation to the issue of costs, in my view, and in agreement with the Judge (who described TNL’s approach as involving a “die-hard attitude”: para 20), it was undoubtedly TNL’s negotiating stance far more than that of Mr Flood which prevented the claim from being settled. On any view, it is impossible to suggest that it assists TNL’s case on costs. Indeed, in my view the Judge was entitled to regard TNL’s attitude in the open discussions and in the correspondence as a reason which militated against departing from the prima facie position, namely an unqualified costs order in favour of Mr Flood.”
A FLAVOUR OF SOME OF THE CORRESPONDENCE
The correspondence is set out in some detail in the the judgment on damages at  EWHC 4075 (QB) the lawyers for the Times wrote
“As I have always made clear in on-going investigations of this kind, The Times is always happy to carry a report on the outcome of an investigation but The Times will not prejudge a matter, which should be left to the Directorate Professional Standards. To do otherwise would be entirely wrong and for your client to issue proceedings now when an investigation is still ongoing would again be entirely premature and leave your client exposed to a serious costs order. And, finally, might I add that threats of conducting litigation on a CFA basis cut no ice with this department.”
“Finally, if your client wants to take out £115,500 worth of ATE insurance that is his business. Given his knowledge of horses he will I am sure know more about gambling than me. In any event threats of ATE insurance do not frighten me in the slightest as it is exactly what happened in the Miller case with Associated and Associated won that case and the Police Federation lost a stack of money.”
“ROBUST” BUT NOT GRATUITOUSLY OFFENSIVE:” SRA GUIDANCE ON COMMUNICATIONS WITH OTHER FIRMS AND LITIGANTS IN PERSON: THE FUTILITY OF RUDENESS
This looked at the Solicitors Regulatory Authority has issued guidance today on “Offensive communications”
“Communications with other law firms and litigants in person
It is not uncommon for emails between law firms in relation to a client’s matter to be robust, particularly in litigation. However, you should ensure such communications do not cross the line by using inflammatory language or being gratuitously offensive, either to the other side or about their client.
Your role is to act in the client’s best interests; antagonising the other side is unlikely to achieve this. You should remain objective and not allow the matter to become personal, regardless of the provocation or your client’s instructions. You are not your client’s ‘hired gun’ and you may be at risk under Principle 3 if you allow your independence to be compromised by being drawn into using offensive language or making offensive comments in order to meet your client’s expectations.
It is equally important to remain professional when dealing with an individual who is representing him or herself, or has appointed a McKenzie Friend. In a recent decision, the SDT fined a solicitor for his heated and abusive exchange of emails with a litigant in person, calling this ‘completely unacceptable’. The SDT said it was the solicitor’s responsibility to maintain his professionalism regardless of what that person may have done.”
FINALLY: KRISTIN SAYS IT BETTER THAN I CAN
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.”