BE CAREFUL WHAT YOU WRITE: THE SUPREME COURT MAY READ IT ONE DAY (AND IT MAY END UP ON A BLOG SOMEWHERE…)
There has already been some interesting debate on Twitter about one aspect of the Supreme Court decision in Times -v- Flood  UKSC 33 that has not made the headlines. Dominic Regan observed that the case is another example of being careful what you write – you never know who is going to read it. In this case the correspondence was read by a large number of judges, including five judges in the Supreme Court.
The Supreme Court considered the issue of whether the additional liabilities that a party had to led to a breach of Article 10. It was held that they did not.
THE INTERESTING PARAGRAPHS (FROM OUR POINT OF VIEW)
Lord Neuberger, in wonderfully understated terms, considered the contents of some of the correspondence that had passed between the parties in Flood -v- TNL
” 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.”
OTHER CASES ON THIS POINT
In 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.
VIEW FROM THE BENCH
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
I have mentioned before Kristin Heimark‘s 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.
- Dismal correspondence and conduct: The Administrative Court gives a Warning.
- “Aggressive Correspondence” and effective litigation: are the two synonymous or diametrically opposed.
The Law Society of British Columbia have some useful guidance in Top Complaint against lawyers is rude or uncivil behaviour.