The Solicitors Regulatory Authority has issued guidance on what amounts to “Offensive communications” from a firm of solicitors to the other side, particularly to a litigant in person. 

The SRA sets out that a solicitors role is to act in the client’s best interest. Antagonising the other side is unlikely to achieve this.

THE SRA GUIDANCE

The Guidance covers several issues (including behaviour on social media) in relation to communications with other firms and litigants in person.

“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, solicitors 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.

The SRA states that solicitors should remain objective and not allow the matter to become personal, regardless of any provocation, or their client’s instructions.

The SRA states that solicitors are not their  client’s ‘hired gun’ and they may be at risk under Principle 3 if they allow independence to be compromised by being drawn into using offensive language, or making offensive comments in order to meet their client’s expectations.

The SRA states that 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 Solicitors Disciplinary Tribunal 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 professionalism regardless of what that person may have done.

AGGRESSIVE CORRESPONDENCE IS NOT HELPFUL AT TRIAL AND AT COURT GENERALLY

The Courts have found against solicitors where they have become aggressive and such  correspondence has also led to indemnity costs against the corresponding party. In the Excalibur Ventures case [2013] 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”

More recently we have the observations of Mr Justice Edwards-Stuart in Gotch -v- Enelco [2015]:

“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”