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

3 Responses

1. 

   Anton Smith · August 20, 2015 at 09:04:03 · →

   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

2. 

   Root · August 20, 2015 at 10:54:29 · →

   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.

3. 

   gexall · August 20, 2015 at 10:54:57 · →

   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.

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