Stephen Baister writes...

FEATURE

Stephen Baister writes...
May I take you to the correspondence?

“May I take you to the correspondence?” is one of a number of questions the judge almost never wants to hear. “The correspondence” is usually tucked away at the end of the trial bundles in a fat separate file (numbered C/17 or something equally unmemorable). No one will have even cracked it open so far.

The honest answer to the captioned question is, of course, “No”. A more temperate answer may be, “If you really must.”

Sir Christopher Clarke got off lightly in Excalibur Ventures LLC v Texas Keystone Inc and ors. His judgment records:

“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.”

The approach of the defendants’ solicitors to their opponents in ATB Sales Ltd v Rich Energy Ltd & Anor, which include the comment “This is quite frankly an imbecilic request by you,” similarly attracted adverse comment. The judge said:

“I do not consider that there are any circumstances in which one solicitor in the course of his professional duties should accuse another in writing of making imbecilic requests. That language is far removed from the professional courtesy which solicitors are expected to show each other and those they deal with. If a trainee solicitor sent the letter, as the reference suggests, the fact that it was sent in this form suggests a failure by the supervising solicitor properly to supervise.”

In Collier & Ors v Bennett Saini J complained:

“[T]hat 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 […] 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.”

As in most things to do with litigation there can be no hard and fast rules. I will not, however, let that stop me from offering a few, almost all of which I broke myself on more occasions I care to remember.

1. Remember that anything you write may be read out in court, so don’t say anything in correspondence that you wouldn’t want the judge to read. (There are, alas, occasions on which the judge’s reluctance to read the correspondence is overcome.)
2. Keep your letters or emails as short as possible: the less you say, the less you’ll get wrong. (You may think you are a Titan of the contentious world, but believe me, you aren’t.)
3. Avoid answering anything immediately unless you absolutely have to. Think for a while before you write.
4. If in doubt show what you intend to write to someone else before you send it. And don’t send it if that person advises you not to.
5. Don’t answer anything unless you are reasonably sober. (I once broke that rule and did something I’d never have dared do while of sound mind. It worked brilliantly, but that was just luck. I never risked it a second time.)
6. Avoid cliché. “We are surprised that you say…” (No you aren’t.) “We take exception to…” (You don’t really.)
7. (Almost) never threaten to report someone for anything unless it’s serious. It makes you look weak and peevish. (Also it’s usually more trouble than it’s worth.)
8. Don’t be aggressive. A good point requires no extra punch.
9. Avoid pointing out his/her stupidity to your opponent. If he/she is stupider than you are, be grateful: you don’t want the other side putting someone brighter on the job and changing the odds against you.
10. Remember: you always meet everyone again.