Workshop: Private client: Opposing solicitors who fail to respond

My firm is instructed by a client who is the claimant in a difficult and rigorously contested claim against the validity of her late mother’s will. The claim has caused much animosity within her family and they believe that she has been delaying matters. It is in fact the opposing solicitors firm who has been failing to respond to correspondence and has been causing delays.

The client has instructed the firm to take an extremely aggressive stance in correspondence to try and get matters resolved. My client also wants to have sight of all correspondence to the other side before it is sent out.

A solicitor’s duty is always to act reasonably in correspondence and not to bring the profession into disrepute. Correspondence should never involve personal feelings or personal comments towards its intended recipient particularly when communicating with a litigant in person or third party. It can be difficult sometimes to assess where the lines blur between personal comments or feeling, which are inappropriate, and expressing reasoned concern if the other side simply do not deal with your correspondence in a timely or professional manner.

Similarly, correspondence should remain civil in tone. Overly aggressive correspondence serves no purpose other than to antagonise your opponent and potentially cause further rifts between family members (who may well see the letters forwarded to them by their solicitors). Aggressive correspondence is often viewed at face value as being unhelpful and any valid points you may raise in such letters could be missed or overlooked by your outraged or bemused opposition. This inevitably leads to further correspondence, as you try to rephrase your original points, and unnecessary further costs. Always consider if your letter will help to progress matters for the client.

Clients’ expectations

Clients will not necessarily understand your patience with the opposing party or the cordial tone of your letters especially if their costs appear to be increasing due to the delay. You must ensure that they understand why it is necessary to remain composed in correspondence and not to let frustrations take over the tone of letters. Remind clients that there is always the possibility, particularly with contentious matters, that a judge may one day have sight of the correspondence. Tales of judges in open court demanding to speak directly to solicitors who have vented their personal feelings in correspondence are rare but are not unheard of.

Very few solicitors can claim not to have recorded at some point in their correspondence that they are ‘extremely concerned to note’ or that they are ‘disappointed’ not to have received any response. This may seem initially as a courteous way to express frustration. While they may well be (and in some cases probably a polite expression of a solicitor’s annoyance) the court is quite likely to consider it inappropriate or unnecessary language. Your client may in fact be the driving force behind such comments and in such cases it is likely to be much more appropriate to explain that it is your client who is frustrated or concerned and wonders what the cause of the delay can be.

Clients frequently expect their legal adviser to take a hard line approach towards their opponent particularly if they perceive their opponent’s delay is increasing costs. The advice to the client is invariably that they must not be seen to be taking an unreasonable approach in their correspondence and must allow sufficient time within which a party should respond. Strong letters are appropriate where a party continually fails to respond or fails to respond with helpful or constructive correspondence but realistically you need to explain to the other party exactly what the consequences of their failed response will be.

Do you intend to seek an application for pre-action disclosure or an application for an account? If so, make this clear. Confirmation of your anticipated next step will undoubtedly provoke more of a response than if the opposing solicitor views your response as just a blast of ‘hot air’.

Amicable footing

All of this can be avoided if practitioners respond timely to correspondence sent to them. Even if client instructions prove elusive a simple updating letter to the other side that instructions are being sought or giving the reason for the delay can help negate the need for chasing correspondence to be sent. It often has the positive effect of keeping the parties on an amicable (where possible) footing and keeps costs of correspondence down.

There is no strict rule on the length of time to wait or the frequency of correspondence being sent (within good reason) but you should consider the costs of continued correspondence to the other side. In turn, any solicitor who fails to respond timely to correspondence and receives the chasing letters should consider if they are unnecessarily increasingly overall costs for their client.