“INTEMPERATE DEBATE” IN LEGAL CORRESPONDENCE: A REVIEW OF THE GUIDANCE AND CASES
The judgment yesterday in Collier & Ors v Bennett  EWHC 1884 (QB) contained some judicial observations as to “intemperate debate” in correspondence. This provides an opportunity to review guidance and judicial observations on this topic.
The judge was considering an application for a Norwich Pharamacal order and pre-action disclosure in relation to an individual’s Twitter account. As part of the judgment Mr Justice Saini stated:
I also note at the outset that the evidence and correspondence before me include a lengthy and, I regret to say, often intemperate debate between the parties’ respective Solicitors in relation to alleged waiver of without prejudice privilege and allegations of professional misconduct. Those are irrelevant satellite issues. I informed the parties at the Skype hearing that I would not be drawn into these matters.
Given the strength of feeling on both sides of the Solicitors’ debate, I should however record that I express no views as to who was in the “right” on these matters. I do not need to consider the claimed without prejudice material to decide this claim and have ignored that material in the evidence and substantial correspondence bundle before me.
This provides an opportunity to recap on guidance and earlier cases on the
THE SRA GUIDANCE
The Guidance covers several issues, including behaviour on social media. In relation to communications with other firms and litigants.
“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.”
AGGRESSIVE CORRESPONDENCE IS NOT HELPFUL AT TRIAL AND AT COURT GENERALLY
I have been unable to find a single case where a judge has found that aggressive correspondence, and angry letters, from a party has persuaded that judge that the particular litigant was in the right. There are, however, examples, where correspondence has led to indemnity costs against the corresponding party. So 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.
It is apparent that the Wempens themselves were in no way averse to damaging Mr Kozel personally: see the injunction to “bury the bastard” in the email dated 24 November 2007, paragraph 938 of my judgment. Further, it appears to me that part of the Wempen plan was to do everything that might in one way or another drive Gulf to settle.
It is not suggested that Clifford Chance did not act in accordance with their instructions and I infer that Excalibur was perfectly content with the belligerent tone, volume, content and repetition of the correspondence and the war of attrition of which it formed part, and with the zeal of Mr Panayides in pursuing it.
I do not suggest that the approach of Gulf and its team to these proceedings has been wholly blameless and I am aware that there have been criticisms, some of them judicial, going in the opposite direction, including on occasion the award of indemnity costs. What, however, I am concerned with at this juncture is the overall approach of Excalibur to the conduct of this litigation, which is as I have described..”
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 nature of the correspondence was one of the factors that led to indemnity costs being ordered.
More recently we have the observations of Mr Justice Edwards-Stuart in Gotch -v- Enelco 
Whilst English law is an adversarial process, that goes to the issues in the case: not to every aspect of the procedure. Parties to litigation, in the TCC at least, are expected to conduct that litigation in the manner that is most expeditious and economical. Bringing the right issues to trial in the most economical fashion, and taking steps to ensure that the costs are kept at a level that is proportionate to what is at stake, is to be at the heart of the process.
(If anyone can show me a decision where aggressive correspondence has had a positive impact on a trial or hearing I would be glad to see it).
A HELPFUL GUIDE
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
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.”
BE CAREFUL WHAT YOU WRITE: THE SUPREME COURT MAY READ IT ONE DAY (AND IT MAY END UP ON A BLOG SOMEWHERE…)
An earlier post on this blog 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.”
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.
BUT I HAVE BEEN WRITING AGGRESSIVE LETTERS FOR YEARS…
Matters are probably being resolved despite such letters rather than because of them. Further this can only be said with a degree of confidence if you are happy for those letters to be read out in open court and for your clients to be cross-examined on them. Cross-examination on correspondence is often extremely effective, particularly because witnesses are reluctant to agree to the strident or aggressive tone of some letters or emails ostensibly written on their behalf.
SHOULD CORRESPONDENCE THEN BE SUPINE?
I am not advocating that letters cannot be firm, or even assertive.
- However a rude or aggressive letter is counter-productive.
- The cardinal sin is that lengthy aggressive correspondence is mistaken for effective litigation.
- Time that could usefully be spent on preparing and assessing evidence and preparation for trial and/or settlement is wasted by the preparation of vituperative letters.
- Those letters, in turn, often hamper the settlement process and (so far as I can see) actually harm the client’s case.
Put bluntly (but not rudely) there is little point in attempting to argue a case in correspondence, particularly aggressive correspondence. This rarely, if ever, gives rise to a change of mind and, as we have seen, can be harmful to the writer’s case.
The Law Society of British Columbia have some useful guidance in Top Complaint against lawyers is rude or uncivil behaviour.