“THEY LOST”: THE DANGERS OF OVERCONFIDENCE IN CORRESPONDENCE

“Never write anything you will be embarrassed by the court reading” is an essential piece of advice for all lawyers (and one I suspect we have all, occasionally, breached). An example can be seen in the opening lines of the judgment of Mr Justice Turner in Fattahi v Charles Grosvenor Ltd [2019] EWHC 3497 (QB).  It is, as they say, posted without comment.

THE JUDGMENT

    1. This is yet another case in which a dispute between neighbours has spiralled out of control. A claim for an injunction and damages, eventually found to have been worth little more than £10,000, occupied four days of court time in the County Court at Oxford and culminated in a reserved judgment stretching to 188 paragraphs over 36 pages. It is tribute to the patience of Her Honour Judge Vincent that her obvious exasperation at the way in which the defence case had been presented was expressed in such measured terms.
    2. At paragraph 55 of her judgment she states:
“At the outset of the trial I had read all of the first bundle and most of the second containing all the pleadings, witness statements, expert reports, including plans and photographs. I had not yet read the third bundle containing around 450 pages of parties’ and solicitors’ correspondence. In the circumstances, it was news to me that the defendant was alleging the claimant’s conduct of the litigation was an issue and in particular she was alleged to have fraudulently concocted an email. Having read the skeleton argument a number of times, I was still at somewhat of a loss to understand the defence and the legal basis for it.”
    1. Indeed, the elusiveness of the Defendant’s contentions was matched only by the tone of strident confidence with which his legal team had advanced them. The Judge quoted from a letter dated 19 January 2019 from the Defendant’s solicitors:
“Mr Williams of counsel, who will also be trial counsel, has clearly indicated that your client’s claim is legally, equitably, regulatorily and factually flawed. It is our client’s position that it is doomed to failure and she will be liable for a substantial costs order which we will ask is paid on an indemnity basis for obvious reasons. Our client now has a new legal team who are confident in obtaining a just and equitable result from the court.”
  1. They lost.

A BIT LATER IN THE JUDGMENT…

“It is a matter of very considerable regret that the Judge was provided with virtually no assistance whatsoever on the way in which the Defendant put its case under the Part 20 proceedings. One might be forgiven for thinking that the Defendant’s level of misplaced confidence in his prospects of success against the Claimant, as evidenced in the letter from which the Judge quoted, had turned the Part 20 claim into a virtual irrelevance.”