Introduction
Solicitors will write threatening letters, it’s a given. The Solicitors Regulatory Authority have recently released a warning about communications, and reminding solicitors not to write them in a misleading or threatening way.
As I wrote in my “Dealing with Solicitors” page, where possible you should be polite and respectful to solicitors representing your opponent(s). In general terms and in theory they are just doing their job, and trying to to the right thing for their client.
With that said, it’s not always the case that an opponents’ solicitors will play things with a straight bat, especially when they sniff litigant in person – they may say or do things to you as a litigant in person they wouldn’t do to another solicitor.
This page is designed to discover some of nonsense solicitors write in letters to try and intimidate you, what they’re trying to say, and what it means in reality.
The case is bound to fail line
“Your case [or claim] is bound to fail”
What are they trying to imply?
Of course every solicitor is going to write to their opponent and tell them their case it “bound to fail”! That’s the first line of attack. I’ve never seen a solicitor not write that in a letter!
What is the reality?
This is the sort of nonsense solicitors write it’s worth completely ignoring (but worth considering the legal points), it means nothing – and as I said in my dealing with solicitors page; a solicitors’ opinion is irrelevant.
If the solicitor is writing to you setting out substantial points of law and/or explaining in greater detail than a sentence why they believe your case or claim may fail, it’s certainly worth reading about it and thinking on what their position is, researching – and of course taking legal advice.
But if they’re shoving that in letters as a standalone sentence – its just to try and impress their client, and a load of hot air.
What will the Court think?
The whole point of a dispute is that if it gets to Court, the Judge will decide on who wins and loses – not a jumped up solicitor. If you lose and the solicitor warned you the case or claim was ‘bound to fail’ – your opponent may point it out when the issues of costs are to be decided. If you win, and the solicitor has told you that your claim is ‘bound to fail’ – then they were clearly wrong!
The Conduct and Credibility Line
“We will bring this to the attention of the Court on the issue of conduct and credibility”
What are they trying to imply?
The intent of writing this is to make you believe you have done something wrong, that the Court is going to take some kind of outrage, and the Judge will ‘throw the book’ at you for it.
What is the reality?
If you’ve not done anything ‘wrong’, then this is probably a tactic to scare you into doing something, or to not do something. For example, I once agreed with a solicitor by way of a Consent Order that documents would be served on a specific date. Their client was late serving it by several days, in breach of the Order – and when I complained, I was given the above line, as if I was in the wrong. Drawing my complaint to the attention of the Court, supposedly on the issue of my conduct and credibility, would obviously have done nothing other than highlight the other side’s errors – but they still threatened it in the hope it would scare off of complaining.
Let’s be logical: is a small procedural error, or a mistake really going to blow your case apart? Unlikely.
Try not to do anything ‘wrong’. Keep the communications with the solicitors polite, and once a solicitor is involved do not communicate with the opponent directly. Make sure that you follow the Court’s Directions, Orders and Rules, and make sure you’re not late for anything. Also keep everything in writing. Don’t make threats, or do or say anything that you’re not prepared to carry out – and be sensible about it. If you have missed a date or made a small procedural error, apologise, and move on – the solicitor knows they won’t win their client’s entire case on you making a few small errors (if, you even have).
So, generally those kinds of lines are a load of bollocks.
What will the Court think?
Any solicitor knows that if they point out the small irrelevances perceived of ‘wrongdoing’ or small mistakes when dealing with a Litigant in Person, unless it is substantial or serious – the Judge will see it as mudslinging, and not progressing the case any further. Unless you are persistently ‘in the wrong’, or your ‘errors’ are causing your opponent prejudice and/or increasing costs – the Court is unlikely to be that interested.
The classic Costs Line
“We will bring this to the attention to the Court on the issue of costs”
What are they trying to imply?
This is a similar line to the above, it’s intended to imply that as a result of X or Y you may be liable to be paying costs, and that it’s going to be expensive for you, etc, etc.
What is the reality?
Sometimes the Court can award indemnity costs (or even wasted costs against a legal professional) – but the test for that is that there has to be “some form of misconduct or unusual circumstance”. Rarely is indemnity costs awarded in the run of the mill arguments that occur between solicitors and other parties, unless someone is behaving extremely badly or dishonestly.
Let’s be logical: Is a Judge going to read through every piece of correspondence and add up to the penny who they think has behaved the worse, and make them pay £5,827.57? Or are they going to take the broad brush view there inevitably will be disagreements, and the Court needs to come to a resolution.
Hopefully the answer to that is rhetorical. So, again generally these kinds of threats are a load of bollocks.
What will the Court think?
For run of the mill issues and/or standing your ground – threats like the above are nothing more than a load of hot air, and intended as a test to see if the very mentioning of “costs” makes you back down or do what you’re told. Judges are not scared of giving solicitors a rollocking for such behavior either!
However, at some point the Court has to deal with costs. If your unreasonable conduct is driving the costs up, then even if you’ve won, the Court can still strip you down. But contrary to what solicitors will have you believe; the Court isn’t suddenly going to make you pay thousands because you don’t cave into their demands, or make you pay to the penny because a solicitor had taken the view your position is somehow unreasonable.
Without Prejudice
“Without Prejudice” or “Without Prejudice Save as to Costs”
This is one to be slightly careful of.
With Prejudice (WP) or Without Prejudice Save as to Costs (WPSATC) is a a ‘genuine thing’. The intent of Without Prejudice correspondence is to allow the parties to have ongoing discussions to narrow down the issues and/or settle the dispute independently, without the eyes of the Court. The same applies to Without Prejudice Save as to Costs, the difference meaning you can show the Court WPSATC only if you are inviting the Court to decide on the issue of costs.
If you ignore this, then it can have serious implications for you, the Court is likely to take a dim view of waiving privilege of any WP material, if it is actually WP material.
With that said, for material to be ‘properly’ Without Prejudice there has to be two key ingredients. Firstly there has to be a dispute to settle. Secondly, there has to be a genuine attempt to want to settle the dispute. Solicitors must think carefully before placing “Without Prejudice” on letters, and the SRA has set out a clear warning on the labelling of correspondence. Very specifically the SRA say:
If you use this label then this should signal a genuine attempt to put forward an offer, narrow issues or settle a case. There should ordinarily be no need to apply it to correspondence which does not offer any concessions, and only argues your case and/or seeks concessions from the other side.
Not for Publication
“Not for Publication” or “Private and Confidential”
In a similar way to Without Prejudice correspondence, the two above labels on letters must be properly used. The SRA in their SLAPPs warning say:
The fact that that the recipient has not agreed to the contents remaining private does not mean that the label cannot be relied upon subsequently as relevant evidence that there was an obligation of confidentiality. The key questions will be a) does the information have the necessary quality of confidence and b) was the information imparted in circumstances importing an obligation of confidence…
This is of course very sensible. Just because one side makes statement about they want to happen to a letter they write, doesn’t mean there is any legal obligation on any recipient to comply with such demands. The does mean that if you intend to publish a letter you may need to redact parts of any personal information, or other material which may be considered as confidential – but there is no blanket requirement here.
Applications
Applications are a bit of a tactical one.
Without going in to Applications in too much detail, in the course of court proceedings, you can apply to do pretty much anything. This starts from an application strike out claim or defence, to applications for further information, to applications for disclosure, to applications for witness summonses – and even applications on the day of a hearing or trial to adjust the claim.
A party who makes an Application will be asking the Court to decide something ahead of hearing the substantive matter at a hearing or a trial. Applications can succeed or fail. Usually, the party who has “won” on their position of the application will be entitled to their costs of the application.
Solicitors will often say:
“If you don’t do X or Y we will make an application to the Court and seek that you pay our client’s costs”
What is the reality?
Firstly, Applications (or at least the threats of) are a classic solicitor’s weapon, and often a tactic to get costs orders against an opponent before the substantive issue is decided by the Court – this is often a tactic to wear down the other side financially, and common in the cases of SLAPP’s. Sometimes these can be silly frivolous things, where the other side is looking for a reason to try and get a costs order against you to wear down financially and/or pressure you into settling. At other times, there may be good reason make an Application.
Whether threatened or otherwise, it is a good idea to think very carefully (and take appropriate legal advice) before responding to any Application, or threat of one. If you get it wrong, you could be on the wrong side of a costs order. With that said, it is important not to let the threat of an Application force you to do something which may prejudice you – which is often what the solicitor is really trying to do.
Unfortunately ‘playing chicken’ with Applications is what tends to happen. Solicitors will threaten Applications to see what their opponents will do, and to see if the threat of an Application and costs order can bully you into their demands. Often the threats amount to nothing, but it is in the hands of the person making the Application whether they commit the cost to doing so – then of course its a matter for the Court.
What will the Court think?
The Court has a relatively narrow discretion on Applications.
Firstly does it allow the Application or not. This will depend on a number of factors relating to the specifics of the Application. For example, does the Application get the case any further, or will there be a risk to prejudice/injustice if the Application is not granted. Of course, the other side will argue that it’s a completely necessary Application, and so on – but that doesn’t mean the Judge will agree! The Judge may see it as a necessary Application – the Judge may have good reasons (in law) not to entertain it. The Judge may well see a frivolous Application for what it is: an attempt to start racking up costs orders.
Secondly, on costs. Usually the successful party to an Application has their costs paid. If you’ve opposed an Application and it’s been dismissed you can have your costs! If the other side have been successful, it is possible to argue that the costs should be “in the case”, meaning that instead of having to pay costs now – the costs are dealt with after the substantive issue has been decided.
Costs in the case is something I firmly believe should occur on all interim issues such as Applications – as it stops all the satellite issues, and stops solicitors making pointless applications just to get costs orders against their opponent. If the other side is genuinely intent on taking their matter all the way to a final hearing/trial – why be seeking interim costs orders along way for a faction of the trial costs?
Conclusion
Whether legally represented or not, it’s inevitable that at some point the other side’s solicitors will come up with seemingly absurd positions. Sometimes this is solicitors nonsense – other times it may be a legitimate point. But it is important to consider all of this carefully and seek legal advice if unsure which!