Angry Letters: WTF? (What’s The Fuss)

In all litigation, any correspondence can be read in (at least) two ways. One of them is often “angry or aggressive”.

As a barrister of some little experience, I have, by my own estimate, read several hundred thousand letters between parties and/ or solicitors. These range from amicable and collaborative at one end, through to rude and insulting at the other.

A suggestion that the recipient should “use the enclosed ￡5 note to buy a calculator and some crayons, and learn some [expletive] maths” will always particularly stick in my mind.

 The question does arise however, how aggressive should correspondence be?

 Lawyers, by the very nature of being lawyers, have a range of styles, from amenable to prickly and everything in between. I have often heard it said at the start of a case that Mr X “wanted a really angry feisty lawyer”. Mr X often finds himself questioning his bill at the end of a case as a result of lengthy, angry correspondence both to and fro.

 Whilst I cannot think of any lawyer who has achieved a great result on the back of outright and sustained aggression, I can think of countless examples of such an approach losing a case.

 In Excalibur Ventures [2013], Lord Justice Clarke made a number of comments. The most pertinent, in my opinion, is:

 “…it is apparent to me, however, from what I have seen that some of the correspondence… 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… misleading the market and misleading the public... 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.”

The solicitors in question however may well have been following their instructions. One email from the client told them in no uncertain terms to “bury the bastard” when referring to the other side.

 As pointed out by Mr Justice Edwards-Stuart in Gotch & Another v Enelco Ltd [2015] (my emphasis added):

“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.”

 So it is worth remembering that lawyers should try to keep a distance from their client, and keep the fire out of correspondence.

 One of the most useful approaches I have seen is where the writer sets out a list of the, say, 10 issues in dispute, and politely sets out which of those have scope for negotiation, as well as which do not. It is quite possible to be firm, robust, and tough, whilst being polite.

 For example, a letter containing the wording “we do not agree with your interpretation of clause X, which now seems to be a matter that will fall to be determined by the trial judge” works just as well without any insults or expletives!

 It is not often, if ever, that a case is won as a result of arguing a client’s case vociferously and at length in correspondence. The time spent in such lengthy letters may be better spent working on a negotiated settlement, or preparing for trial…