“It is generally better to deal by speech than by letter”
(Essay ‘Of Negotiating’, 1625, Francis Bacon)
Letter writing may have become a dying art in this digital age, certainly on a personal basis; and training in the art in the legal profession is perhaps, at best, lacklustre.
The inclusion of voluminous and often tendentious inter-partes correspondence in court bundles may confirm the Eighth Law of Sedley J’s enlightened and amusing Law of Documents.
“At least 80 per cent of the documents shall be irrelevant.”
So much so that many judges, absent specific reference, ignore such correspondence. But look out. As speech by manner may sometimes cause offence, beware the effect of correspondence not only on those that receive but also on judges that may view it.
In Alpha Schools (Holdings) Ltd v Signal Capital Partners [2024] EWHC 2862 (Ch), former Chief Bankruptcy Registrar Baister, sitting as a Deputy Insolvency and Companies Court Judge, condemned the Respondent’s solicitors for sending a “disgraceful” letter to a competitor of one of its clients and stated that:-
“It would have been wrong for a lay client to write in those terms; for a solicitor to do so was, in my view improper……The explanation that it was written in the interests of cooperation is disingenuous. The purpose of writing this letter could only have been (a) to put improper pressure on Alpha to pay up without further inquiry, either in the form of direct pressure ….or by way of indirect pressure exercised on Alpha by Fintex; or (b) to interfere with the business relationship between Alpha and Fintex with a view to damaging Alpha. This was abusive conduct.”
Such improper conduct contributed to the court acceding to Alpha’s application seeking an order to restrain Signal from presenting a winding-up petition.
“Granting or refusing to grant an injunction involves the exercise of a discretion. Signal’s abusive conduct supports the exercise of that discretion in favour of Alpha. But it goes further: it also fortifies my decision on misrepresentation, leading me to wonder whether a company that is prepared to act with the level of aggression Signal has demonstrated might also be unwisely zealous when it comes to pitching for business or negotiating a finance deal.”
As an object lesson, this conduct fell well short of several points made by Vos M.R. when Chancellor in his 2020 address to Harvard Law School, dealing with the creation of the modern dispute resolution system. Lawyers should always concentrate on adding value for their clients and with the advance in technology be more ambitious. Problems should be approached holistically with the emphasis on ‘resolution’ rather than ‘dispute’.
Following his judgment in November 2023 in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 when the Court of Appeal decided that the Court had power to order parties to engage in non-court based dispute resolution (ADR), the direction of travel is now clear.
Whether in litigation, arbitration, mediation or other non-court dispute resolution processes, the aim of the lawyer should be, even in the most complex cases, by careful analysis of the very few documents and points of law that matter, to identify at an early stage the single or very few real points.
In advancing a case in the best interests of the client, lawyers should also take more care as to the content, quality and tenor of inter-partes correspondence in order to assist resolution where possible.
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